LORD REID(reading the leading judgment) My Lords,In 1959 the Appellant was charged at the Central Criminal Court with causing grievous bodily harm to one Manning. He was not given legal aid but after the case had proceeded for some time he was informedthat he could have a "dock brief". He chose the Respondent to be hiscounsel and. in accordance with his duty as a barrister, the Respondent agreed to act for him. During an adjournment he gave to the Respondent his account of the affair. The Respondent then cross-examined the Crownwitnesses and called the Appellant and another witness. The Appellantwas convicted and it is plain that he had no real defence. But he was muchaggrieved by evidence that he had used a knife; he wanted to establish thathe had inflicted Manning's injuries with his hands alone, or by biting, andapparently the Respondent did not ask all the questions or lead all theevidence he had suggested.
In February 1965 the Appellant raised the present action. His originalstatement of claim, apparently prepared by himself, was barely intelligible.In April the Respondent sought an order that the statement of claim bestruck out as disclosing no cause of action and also as being irregular.In May the Master ordered that the Statement of Claim be struck out andthe action dismissed. The Appellant appealed and Browne J. askedthe Official Solicitor to instruct counsel to act as amici curiae.
In November 1965 Lawton J. heard argument for five days on the questionwhether the statement of claim disclosed any cause of action and, in a learnedand elaborate judgment delivered on 21st December, he held that it did notbecause a barrister cannot be sued by his client for negligence or lackof skill in presenting his client's case in court. I shall not deal with attemptsto improve the statement of claim by amendment. And I shall not dealwith the facts beyond saying that possibly a case could be made out to theeffect that the Respondent made some error of judgment—I am not in aposition to express an opinion about that—but there is nothing in thefacts before us to indicate any professional negligence or lack of skill onhis part, and nothing to indicate that the Appellant would have been anybetter off if the Respondent had acted differently.
Leave to appeal was given and the Court of Appeal (Lord Denning, M.R.and Danckwerts and Salmon L.JJ.) on 20th October 1966 dismissed theappeal. Salmon L.J. said, I think justly, that the Appellant's claim wasclearly as devoid of merit as it was of any prospect of success. But inview of the importance of the question of law involved this House gaveleave to the Appellant to appeal.
The argument before your Lordships has been directed to the generalquestion of barristers' liability and has ranged widely. For the Appellantit was said that all other professional men, including solicitors, are liableto be sued for damages if loss is caused to their clients by their lack ofprofessional skill or by their failure to exercise due care ; so why shouldnot barristers be under the same liability? For the Respondent it hasbeen shewn that for at least two hundred years no judge or text writer hasquestioned the fact that barristers cannot be so sued, and a variety of reasonshave been adduced why the present position should continue.
I do not propose to examine the numerous authorities. It is, I think, clearthat the existing rule was based on considerations of public policy. But publicpolicy is not immutable and doubts appear to have arisen in many quarterswhether that rule is justifiable in present day conditions in this country. Soit appears to me to be proper to re-examine the whole matter. In doing soI shall confine my attention to conditions in England and Scotland, betweenwhich there appears to me to be no relevant difference. I do not know enoughabout conditions in any other country to express any opinion as to whatpublic policy may there require.
There is no doubt about the position and duties of a barrister or advocateappearing in Court on behalf of a client. It has long been recognised that nocounsel is entitled to refuse to act in a sphere in which he practices, and onbeing tendered a proper fee, for any person however unpopular or evenoffensive he or his opinions may be, and it is essential that that duty mustcontinue: justice cannot be done and certainly cannot be seen to be doneotherwise. If counsel is bound to act for such a person, no reasonable mancould think the less of any counsel because of his association with such aclient, but, if counsel could pick and choose, his reputation might suffer ifhe chose to act for such a client, and the client might have great difficultyin obtaining proper legal assistance.
Every counsel has a duty to his client fearlessly to raise every issue, advanceevery argument, and ask every question, however distasteful, which he thinkswill help his client's case. But, as an officer of the Court concerned in theadministration of justice, he has an overriding duty to the Court, to thestandards of his profession, and to the public, which may and often does leadto a conflict with his client's wishes or with what the client thinks are hispersonal interests. Counsel must not mislead the Court, he must not lendhimself to casting aspersions on the other party or witnesses for which thereis no sufficient basis in the information in his possession, he must not with-hold authorities or documents which may tell against his clients but whichthe law or the standards of his profession require him to produce. Andby so acting he may well incur the displeasure or worse of his client so that ifthe case is lost, his client would or might seek legal redress if that were opento him.
Is it in the public interest that barristers and advocates should be protectedagainst such actions ? Like so many questions which raise the public interest,a decision one way will cause hardships to individuals while a decision theother way will involve disadvantage to the public interest. On the one hand,if the existing rule of immunity continues there will be cases, rare thoughthey may be, where a client who has suffered loss through the negligenceof his counsel will be deprived of a remedy. So the issue appears to meto be whether the abolition of the rule would probably be attended by suchdisadvantage to the public interest as to make its retention clearly justifiable.I would not expect any counsel to be influenced by the possibility of an actionbeing raised against him to such an extent that he would knowinglydepart from his duty to the Court or to his profession. But althoughthe line between proper and improper conduct may be easy to statein general terms, it is by no means easy to draw in many borderline cases.At present it can be said with confidence in this country that where there isany doubt the vast majority of counsel put their public duty before theapparent interests of their clients. Otherwise there would not be that implicittrust between the Bench and the Bar which does so much to promote thesmooth and speedy conduct of the administration of justice. There may beother countries where conditions are different and there public policy maypoint in a different direction. But here it would be a grave and dangerousstep to make any change which would imperil in any way the confidencewhich every Court rightly puts in all counsel who appear before it.
And there is another factor which I fear might operate in a much greaternumber of cases. Every counsel in practice knows that daily he is faced withthe question whether in his client's interest he should raise a new issue, putanother witness in the box, or ask further questions of the witness whom heis examining or cross-examining. That is seldom an easy question but I think that most experienced counsel would agree that the golden rule is—when indoubt stop. Far more cases have been lost by going on too long than by stop-ping too soon. But the client does not know that. To him brevity may indicateincompetence or negligence and sometimes stopping too soon is an error ofjudgment. So I think it not at all improbable that the possibility of beingsued for negligence would at least subconsciously lead some counsel toundue prolixity which would not only be harmful to the client but againstthe public interest in prolonging trials. Many experienced lawyers alreadythink that the lengthening of trials is not leading to any closer approximationto ideal justice.
Immunity from action by the client is not the only way in which it has beenthought proper to protect counsel. It has long been established that judge,witnesses and barristers alike have absolute privilege with regard to what issaid by them in Court: and for reasons similar to those which apply toproceedings in Parliament. If there was ever any doubt about that it wasremoved by the decision in Munster v. Lamb 11 Q.B.D. 588 where a solicitorwas sued for defamatory words which he had spoken while defending anaccused person. Brett M.R. said that he assumed that the words were spokenmaliciously, without any justification or excuse, from the indirect motive ofpersonal ill will or anger towards the prosecutor, and that the words wereirrelevant to every issue of fact in the case. Yet it was held that there wasabsolute privilege. He said:
" to my mind it is illogical to argue that the protection of privilege ought" not to exist for a counsel who deliberately and maliciously slanders" another person. The reason of the rule is that a counsel who is not" malicious and who is acting bona fide may not be in danger of having" actions brought against him " (page 604)
And Fry, L.J., dealing with the analogous cases of judges and witnesses,said:
" The rule of law exists not because the conduct of those persons ought" not of itself to be actionable but because if their conduct were action-" able, action would be brought against judges and witnesses in cases" in which they had not spoken with malice, in cases in which they had" not spoken with falsehood. It is not a desire to prevent actions from" being brought in cases where they ought to be maintained that has led" to the adoption of the present rule of law: but it is the fear that if" the rule were otherwise numerous actions would be brought against" persons who were merely discharging their duty. It must always be" borne in mind that it is not intended to protect malicious and untruth-" ful persons, but that it is intended to protect persons acting bona fide" who under a different rule would be liable, not perhaps to verdicts and" judgments against them but to the vexation of defending actions."
It would, in my view, be incongruous if counsel were immune from actionby any one other than his client in respect of his conduct in Court evenwhere that conduct arose from malice, but yet liable to be sued by hisclient for negligence. And all the arguments in the passages which I havejust cited seem to me to be at least equally applicable to the present question.
There are other arguments which support the continuance of the presentrule: they do not appear to me to be conclusive, but they do have weight.I shall only mention one. Suppose that, as in the present case, a convictedman sues his counsel. To succeed he must shew not only that his counselwas guilty of professional negligence, but also that that negligence causedhim loss. The loss would be the fact that he was wrongly convicted by reasonof his counsel's negligence. So after the plaintiff's appeal against convictionhad been dismissed by the Court of Criminal Appeal, the whole case wouldin effect have to be retried in a civil court where the standard of proof isdifferent. That is something one would not contemplate with equanimityunless there is a real need for it.
So the position appears to me to be this: if the present rule were changedthere would at least be a grave risk of consequences much against the publicinterest. And what is to be the advantage? I do not think that it isenough to say that there might—or even would—be an occasional casewhere some client would recover damages from his counsel. There must bemore than that to justify incurring the disadvantages. And I do not believethat there would be more than a very rare case where a client could succeedin such an action, although there might be a number of cases where theattempt was made. It would be absurd to say that there are no membersof the bar who might at some time fall short of a reasonable standard ofskill and care. But the practising Bar is limited in numbers and barristersdo not remain in practice unless they receive instructions from solicitors.And the onus of proving professional negligence over and above errors ofjudgment is a heavy one.
I think that some assistance can be got from looking at the record ofsolicitors. They are liable to be sued for negligence in conducting cases andthey do conduct an immense number of cases in the lower courts. Butsuccessful claims against them for negligence in doing the kind of work whicha barrister would do if instructed in the case appear to be very few innumber. As regards reported cases, there was a case in 1855—Stokes 2. K and J. 232—but the researches of counsel have only discovered one recentreported case—Scudder v. Prothero reported in the Times Newspaper of16th March 1966. I find this case not easy to understand: it may have beenwrongly decided. There have also been one or two Scottish cases where asolicitor has been held negligent in carrying out work in Court which wouldhave been done by an advocate if counsel had been instructed. Therewere also put before your Lordships, by agreement of counsel, notes of anumber of claims against solicitors which had been or were in course ofbeing settled by an insurance company. If these notes can be treated as arandom sample they shew that among some 300 claims only about 8are in respect of negligence by a solicitor in carrying out work which wouldhave been within the province of a barrister conducting litigation—aproportion of less than three per cent.
For the reasons which I have given I am of opinion that it is in the publicinterest to retain the existing immunity of barristers from action by clientsfor professional negligence, at least so far as it relates to their work inconducting litigation. And that would be sufficient to require the dismissalof the present appeal. But to leave the matter there would, I fear, lead tosome misunderstanding or even confusion.
The main reasons on which I have based my opinion relate to the position ofcounsel while engaged in litigation, when his public duty and his duty to hisclient may conflict. But there are many kinds of work undertaken by counselwhere no such conflict would emerge, and there I see little reason why theliability of counsel should be different from that of members of any otherprofession who give their professional advice and services to their clients.The members of every profession are bound to act honourably and inaccordance with the recognised standards of their profession. But that doesnot, in my view, give rise to any such conflict of duties as can confrontcounsel while engaged in litigation.
It was argued that, if counsel were to have immunity with regard to onepart of their work but not with regard to other parts, there would be greatdifficulty in distinguishing between one case and another or determiningwhere the immunity is to stop. I do not think so. The same publicduty applies when drawing pleadings or conducting subsequent stages in acase as applies to counsel's conduct during the trial. And there will becases where the same will apply at a stage when litigation is impending.But there are extensive fields of advisory work or work in drafting or revisingdocuments where that does not apply.
Then, some importance was attached in argument to the rule that counselcannot sue for their fees. That rule has a long history and before thedecision of this House in Hedley Byrne and Co. v. Heller [1964] AC 465 itwas regarded as a reason for the continuance of the other rule that counsel cannot be sued for professional negligence. But the two rules now haveno necessary connection. The existence of the rule preventing counsel fromsuing for fees may still have fiscal and other consequences, but I do notthink that it is now relevant when considering whether it should be possibleto sue counsel for professional negligence. In fact the rule has very littlepractical importance in this connection for its abolition would very seldomenable counsel to recover fees which they do not at present receive.
Finally, I must deal with a powerful argument for the Appellant to theeffect that, if it is unnecessary to protect solicitors by giving them immunityfrom action by their clients, it cannot be necessary to protect barristers inthat way. But I would turn the argument the other way: if it is in thepublic interest to protect counsel, what good reason is there for withholdingsimilar protection from solicitors? This matter has never been fullyconsidered. As I have already stated, there have been very few cases inwhich the question could have been raised. And hitherto, in England atleast, cases conducted by solicitors have generally been of comparativelyminor importance. There are differences between the position of barristersand solicitors: not all the arguments which I have adduced apply to solicitors.But the case for immunity of counsel appears to me to be so strong that Iwould find it difficult to regard those differences as sufficient to justify adifferent rule for solicitors. I have already shewn that solicitors have thesame absolute privilege as counsel when conducting a case. So my presentview is that the public interest does require that a solicitor should not beliable to be sued for negligence in carrying out work in litigation whichwould have been carried out by counsel if counsel had been engagedin the case.
Lord Morris of Borth-y-Gest
my lords,
This interlocutory appeal, which raises issues of considerable importance,has been aided in its progress to your Lordships' House by notable manifesta-tions of patience and indulgence. The issues are of greater consequence thanwould seem apparent from a narrative of the somewhat sombre facts outof which they have, though tardily, emerged. It was as far back as April,1959, that the Appellant went early one morning to a house in West London.A man named Manning was doorkeeper at the house. At the conclusion ofa violent altercation between the Appellant and Manning the latter had thelobe of an ear bitten off and his hand very severely damaged. The Appellantwas virtually unhurt. He has said that he went to the house on behalf ofits landlord, a man named Rachman. He has resented any suggestion thathe used a knife and has proclaimed that, by the use only of the strength ofhis own hands, he tore Manning's hand in half. A consequence of theencounter was that the Appellant was charged. Being committed to theCentral Criminal Court he was arraigned before the Recorder of Londonon Thursday, the 28th May, 1959. There were two counts in the indictment.The first was that he caused grievous bodily harm to Manning with intentto do him grievous bodily harm: the second was that he assaulted Manningoccasioning actual bodily harm. The prosecution case was opened, andthen the first witness was called and examined. At that stage the Appellantasked for legal aid. The Recorder refused that application, but informedthe Appellant that he could instruct one of the counsel who were in Courtto appeal for him. The Appellant desired to have the Respondent as hiscounsel and the Respondent, in accordance with the practice and etiquetteof the Bar, agreed to act. A fee of £2 4s. 6d. was paid. The Court grantedan adjournment of an hour to enable the Appellant to instruct the Respondent.In fact the trial was not resumed until the next day. The Respondent cross-examined the witnesses for the prosecution. The Appellant gave evidenceand another witness was called. The Respondent addressed the jury. Aftera summing-up by the Recorder the Appellant was convicted by the jury on the first count: the Recorder relieved the jury of the necessity of recordinga verdict on the second and less serious count. The Appellant was sentencedto eighteen months' imprisonment. The Appellant applied to the Court ofCriminal Appeal for leave to appeal. Leave was refused.
Time went by until—nearly six years after his trial—the Appellant issueda writ against the Respondent.
The reflection is prompted as to whether there is truth in the aphorism thatlong dormant causes often have more of cruelty than of justice in them.The Appellant claimed damages for professional negligence. His writ wason the 15th February, 1965. The Appellant delivered an undated Statementof Claim. The Respondent took out a summons before the Master for anorder that the Statement of Claim be struck out as (i) disclosing no reasonablecause of action under O. 18, r. 19 (1) (a), and (ii) being irregular in form.On the 17th May, 1965, the Master ordered that the Statement of Claimbe struck out and that the action be dismissed with costs. On appeal to theJudge in Chambers the learned judge (Browne, J.) adjourned the hearinginto open court and asked the Official Solicitor to instruct leading andjunior counsel to appear as amici curiae. Thereafter the matter was heardby Lawton, J. The hearing lasted four days. At the end of the first day'shearing the learned judge afforded the Appellant an opportunity of puttinghis Statement of Claim into a more intelligible shape. On the second daythe Appellant handed in a document that he wished to have treated as anamended Statement of Claim. The learned judge allowed that document tostand as his amended Statement of Claim subject to the omission of anallegation of fraud which it was clear that the Appellant neither desired norintended to make. The amended Statement of Claim was held by thelearned judge to be " well-nigh unintelligible ". It followed that it had tobe struck out as not complying in essential matters with the Rules of Courtand as being embarrassing both to the Court and to the defendant. Thecorrectness of the decision of the learned judge to strike out both theoriginal and the amended Statement of Claim had not been challenged. Thelearned judge went on to consider whether, therefore, he should affirm theMaster's order that the action be dismissed. He concluded that " if it was" possible to salvage something out of the plaintiff's messy verbiage which" would support a cause of action " then it would be just that " he should" be given yet another chance to get his claim in order ". Apparently atthat stage the Appellant was offered another adjournment in order to re-amendhis Statement of Claim: he declined the offer and was content to stand uponhis amended Statement of Claim. What the learned judge did was toconsider whether, if a Statement of Claim could be framed in this case whichdisclosed a cause of action for damages for negligence, an action would lieagainst a barrister for negligence in and about his conduct of a client's casein court. Concluding that it would not, he held that there would be nopoint in giving the Appellant leave to amend. He therefore dismissed theAppeal.
The Appellant applied to the Court of Appeal for leave to Appeal. Hewas granted leave. The Appeal was heard on four days in June, 1966. TheAppellant appeared personally but his solicitor tendered a lengthy, reasoneddocument to the court setting out arguments and authorities. Leading andjunior counsel were instructed by the Official Solicitor to appear as amicicuriae. On the fourth day of the hearing a draft re-amended Statement ofClaim (prepared by the Appellant's solicitor) was presented to the Court ofAppeal and leave to serve it was sought. Lord Denning, M.R., said that, ifan action does lie against a barrister for negligence in the conduct of acase, the draft re-amended Statement of Claim did as a document disclosea cause of action. He held, however, as did Danckwerts and Salmon, LJJ.,that no such action does lie. Accordingly the application for leave to servethe re-amended Statement of Claim did not arise for decision. Salmon, LJ.added, however, that though he would agree that the new document was" technically in order" he would have been unwilling to give leave toserve the re-amended Statement of Claim on the ground that " it would be" most unjust at this stage to allow this re-amended Statement of Claim to" be delivered some seven and a half years after the plaintiff's claim is" alleged to have arisen in an action which is clearly as devoid of merit as" it is of any prospect of success ". Leave to appeal having been given bythis House, application was made for leave to serve the re-amended Statementof Claim under Order 20, rule 5 of the Rules of the Supreme Court, 1965.On behalf of the Appellant it was, however, suggested that if the Appellant'sarguments prevailed the case should be referred back for a decision as towhether leave should be given to serve the re-amended Statement of Claim.
It is in this somewhat uninspiring setting that a question is presented fordecision that for long has been generally regarded as well settled. It mustbe decided without regard to the merits or demerits or the tensions of anyparticular case. As illustrative, however, of a type of possible action whichcalls for examination the complaints of the Appellant in this case as theyhave emerged in the draft of the potential re-amended Statement of Claimmerit examination. The substance of them was that the Respondent failedto put certain questions to witnesses or to call, or to take the necessary stepsto call, certain witnesses. There had never been any doubt that it was theAppellant who caused the very severe injury to Manning's hand or that itwas he who bit off the lobe of Manning's ear. The Appellant's case wasthat he had only acted in self-defence. He now complains that after he hadinstructed the Respondent as to the facts which he said supported his casethe Respondent (a) failed in examining or re-examining a defence witnessto bring out that Manning had associates or friends at the scene of theincident who could have helped him in a fight; (b) failed to cross-examineManning or a doctor who was a prosecution witness as to the impossibilityof the wound having been inflicted by a knife or similar weapon ; (c) failedto elicit evidence from the witnesses at the trial or to call or get witnessesto prove that the Appellant (as rent collector and caretaker for Rachman)had authority to go to the house in question. The complaint of the Appellantwas that as a result of these omissions he was wrongly convicted. It maywell be open to doubt whether evidence as to some of the matters referredto would have been admissible but I find it unnecessary to consider thispoint.
The searching and exhaustive review of the relevant authorities whichwas a feature of the careful addresses of learned counsel revealed withclarity (a) that it has for long been considered to be settled law that abarrister may not and does not enter into any contract which enables himto sue for fees and, (b) that it has for long been considered to be settledlaw that an action alleging negligence against a barrister may not be brought.In this case the first of these has not been challenged. Learned counsel forthe Appellant (while reserving a contention that a barrister could enter intoa special contract) was content to accept that it is the law today that abarrister cannot sue for fees and that this inability rests on a rule of etiquettewhich has now hardened into a rule of law. As it was no part of theargument for the Appellant to suggest that this rule of law should nowbe re-examined or should be reversed it is not necessary to probe deeplyinto the authorities which recognise it nor to consider whether the reasonsupon which it has been based possess today any current validity. Sufficeit to say that the rule existed in 1742 when in Thornhill v. Evans 2 Atkyns330, Lord Hardwicke L.C. proclaimed:
" Can it be thought that this Court will suffer a gentleman of the" bar to maintain an action for fees which is quiddam honorarium or if" he happens to be a mortgagor to insist upon more than the legal" interest under pretence of gratuity or fees for business formerly done" in the way of a counsel?"
Lord Kenyon in 1792 in Turner v. Philipps, Peake 166, mentioned thegeneral opinion of the profession that the fees of barristers and physicianswere as a present by the client and not a payment or hire for their labour.I do not find it necessary to refer to the various later statutory provisionsbeginning with an Act in 1858 which have brought it about that physicians(apart from Fellows of the Royal College of Physicians) may now sue for professional fees. There are decisions which show that physicians could beheld liable for lack of care and skill even at dates when they could not suefor their fees. The disability of physicians to sue for fees existed in 1791when the case of Chorley v. Bolcot, 4 Term 317, was decided. It was statedthat if their fees were other than honorary, physicians would be placed upon" a less respectable footing in society " than that in which they were thenheld. In that case it was said in argument that the comparable disability ofbarristers was founded on grounds of public policy. In 1819 in Morris v.Hunt 1 Chitty 544, Bayley J. stated that barristers cannot sue for their fees.In Poucher v. Norman in 1825 3 B. and C. 744 it was held that one who wasa certified conveyancer but who was not a barrister could maintain an actionto recover compensation for work done and it was said that both physiciansand barristers who acted " with a view to an honorary reward" wereexceptions to the general rule that one who bestows his labour for anotherhas a right to recover compensation. A physician still had no right ofaction for fees when in 1842 the case of Vietch v. Russell 3 Q.B. 928 wasdecided. Lord Denman C.J. said:
" It must be assumed as clear that physicians and counsel usually
" perform their duties without having a legal right to remuneration.
" Such has been the general understanding."
He did add however:
" To prevent that from operating some express agreement must be" shown: but in considering whether such an agreement existed we" cannot lose sight of the general understanding."
The claim that was presented by the diligent barrister Mr. Kennedy in1862 was under an account stated. He had left his practice in Birminghamand taken chambers in London in order to devote himself to and to assumecontrol of the legal affairs of the pertinacious Mrs. Swinfen. Due to hisexertions she retained possession of her estate. At the trial of the casebefore Cockburn C.J. and a jury the summing-up began with this passage:
" You have been truly told by the defendants' counsel that you cannot" take into consideration the services which have been rendered. The" only claim of the plaintiff is upon an account stated which can only" be supported by an admission by the defendants of an existing debt." Whether, if you give your verdict for the plaintiff, it can be upheld, is" a matter which it is not necessary to discuss today. My opinion on" the law is adverse to the plaintiff. Whatever he did as attorney would" fall to the ground. What he did was done as counsel: and it has" been laid down by the highest authority that a barrister can maintain" no action for his fees: they are of an honorary character. It is" impossible to doubt the propriety and expediency of this rule. The" question which you have to decide is not whether the contract on" which the alleged account was stated was a legal contract, but whether" the female defendant did in point of fact acknowledge the existence of" this debt—whether there was a contract for the services before they" were performed, and a subsequent acknowledgment of liability."
Accepting the plaintiff's testimony the jury returned a verdict in his favourfor a substantial sum. But a rule nisi was later obtained to enter a verdictfor the defendants and, after most elaborate arguments, it was made absolute(see 13 C.B.N.S. 677). The judgment of the court was delivered by Erle C.J.who said that " a promise by a client to pay money to a counsel for his" advocacy, whether made before, or during, or after the litigation has no" binding effect; and furthermore that the relation of counsel and client" renders the parties mutually incapable of making any contract of hiring" and service concerning advocacy in litigation ". He added that in all therecords of the law from the earliest time " there is no trace whatever either" that an advocate has ever maintained a suit against his client for his fees" in litigation, or a client against an advocate for breach of a contract to" advocate". He cited numerous authorities in support of holding that" counsel cannot contract for his hire in litigation ". But the incapacity was only one " concerning litigation ". " The incapacity of the advocate in" litigation to make a contract of hiring affects the integrity and dignity of" advocates and so is in close relation with the highest of human interests," viz. the administration of justice ". After a notable and indeed eloquentpassage describing the duties and responsibilities of an advocate the ChiefJustice said:
" If the law is that the advocate is incapable of contracting for hire" to serve when he has undertaken an advocacy, his words and acts" ought to be guided by a sense of duty, that is to say, duty to his" client, binding him to exert every faculty and privilege and power in" order that he may maintain that client's right, together with duty to" the Court and himself, binding him to guard against abuse of the" powers and privileges intrusted to him, by a constant recourse to his" own sense of right."
The reasons for the rule which was there recognised may perhaps not havebeen very clearly analysed or expounded, but if the rule was consideredto advance the due administration of justice, then it must have been thoughtto be linked with considerations of the public interest and therefore ofpublic policy. In the judgment of the Privy Council in The Queen v. Doutre9 A.C. 745, while it was accepted that when an English barrister is employedhe is by necessary implication employed upon the usual terms according towhich a barrister's services are rendered, the Board were not prepared toaccept all the reasons for the decision in Kennedy v. Broun in the Judg-ment of Erle C. J. and were of the opinion (see page 751) that the decisioncould be supported by the usage and peculiar constitution of the Englishbar without attempting to rest it upon general considerations of public policy.
The rule was again recognized in the Court of Appeal in Le Brasseur v.Oakley [1896] 2 Ch. 487 where it was firmly held that the Court could notand should not lend its assistance to barristers to recover their fees: thepayment of such fees was only a matter of honour. To a similar effect wasthe decision in 1880 in the Irish case of Robertson v. Macdonogh 6 L.R.Irish 433 where it was held that a barrister and client were mutually incap-able of entering into a binding contract of hiring. Again in Wells v. Wells[1914] P.155 it was held that fees owing to a barrister are not legal debtsfor the recovery of which a barrister may sue.
As I have indicated, learned Counsel for the Appellant did not find itnecessary to seek to assail the massive bulk of authority which, unless sweptaway or unless it be regarded as outmoded, establishes the somewhat uniquerule that a barrister cannot sue for fees. As this rule has not been challenged
I do not propose to examine it. It has not been the target of any attack.The submission of Counsel for the Appellant was that there is no soundbasis in law for any rule that an action alleging negligence against a barristerdoes not lie and that any rulings to that effect have been founded uponmisapprehension or at least are no longer in accord with modern develop-ments of or understanding of the law.
That it has been considered to be settled law that no action allegingnegligence against a barrister lies is amply illustrated by the circumstancethat there is no record of the success of any such action. Though statementsare found in some cases which suggest the possibility that some claim couldbe brought against a barrister (see Brook v. Montague (in 1605) 3 Cro. Jac.90, Bradish v. Gee (in 1754) Ambler 229 and Burness v. Morris (in 1849)
11 Dunlop 1257) there are clear expressions of opinion made by Judgesthat no action alleging negligence could be brought. The allegation thatgave rise in 1791 to an action for negligence against a barrister in Fell v.Brown Peake 131 was that the Defendant, a barrister, had so unskillfullyand negligently settled and signed a Bill filed by the Plaintiff in the Courtof Chancery that it was referred by the Lord Chancellor to the Masterfor scandal and impertinence and that in the result the Plaintiff was orderedto pay the costs of the reference. Lord Kenyon gave it as his opinionthat no action lay against the barrister for drawing a declaration full ofunnecessary matter. The action was the first and he " hoped it would Be the last of its kind ". Lord Abinger gave a similar opinion in Perring v.Rebutter (in 1842) 2 Moody and R. 429. An action had been broughtagainst Perring. He retained Rebutter (who was a special pleader) toadvise on the proper plea and defence. Perring complained that Rebutteradvised negligently with the result that he (Perring) failed in defending theaction brought against him. When he sued Rebutter Lord Abinger saidthat such an action "was certainly not maintained against a barrister"and that there was no difference in the case of a certified special pleader.On that intimation there was a conference between Counsel and the casewas settled by withdrawing a juror.
In Purves v. Landell (in 1845) 12 Cl. and F.91 Lord Campbell said thatagainst the barrister in England and the advocate in Scotland no actioncould be maintained though he said that an action couldbe maintained against the attorney, the professional adviser or theprocurator if there was (what was then called) gross negligence. In 1876an action was brought both against an advocate and a writer to the signetin the case of Batchelor v. Pattison and Mackeray 3 Rettie 914. The LordPresident, in the course of his judgment, said (at page 918)—
" An advocate in undertaking the conduct of a cause in this Court" enters into no contract with his client, but takes on himself an office" in the performance of which he owes a duty, not to his client only," but also to the Court, to the members of his own profession," and to the public. From this it follows that he is not at liberty to" decline, except in very special circumstances, to act for any litigant" who applies for his advice and aid and that he is bound in any cause" that comes into Court to take the retainer of the party who first" applies to him. It follows, also, that he cannot demand or recover" by action any remuneration for his services, though in practice he" receives honoraria in consideration of these services. Another result" is, that while the client may get rid of his counsel whenever he" pleases, and employ another, it is by no means easy for a counsel to" get rid of his client. On the other hand, the nature of the advocate's" office makes it clear that in the performance of his duty he must be" entirely independent, and act according to his own discretion and" judgment in the conduct of the cause for his client. His legal right" is to conduct the cause without any regard to the wishes of his client," so long as his mandate is unrecalled, and what he does bona fide" according to his own judgment will bind his client, and will not expose" him to any action for what he has done, even if the client's interests are" thereby prejudiced."
In the cases to which I have referred the legal basis for the opinions sounhesitatingly expressed is not fully analysed or expounded. The remarkablecase of Swinfen v. Lord Chelmsford (in 1860) 5 H. and N. 890 was consider-ably concerned with the question of the authority of counsel to settle anaction though the whole question of the legal liability of counsel came underconsideration. In previous proceedings the plaintiff had wished to establishthat an estate had by will been devised to her. Her then counsel (the defendantin Swinfen v. Lord Chelmsford) both to her dismay and, as she asserted,also contrary to her express instructions, settled the case on the basis thatthe estate went to the heir at law subject to his paying an annuity (securedon the estate) to her (the plaintiff) for her life. She firmly refused to acknow-ledge the settlement. She successfully resisted all the legal proceedings bywhich the heir-at-law sought to enforce the settlement. When he applied forspecific performance she succeeded in establishing that the settlement hadbeen without her authority. The issue which she had raised in her originalproceedings later came on for trial again: she was successful in her claimthat the estate had by will been devised to her. The various legal proceedingswhich by her pertinacity gave her complete victory did, however, involve herin trouble and expense. Accordingly, she sued her counsel. The case was triedwith a jury. Her declaration alleged that the defendant (who had been hercounsel) had settled her case (by withdrawing a juror) wrongfully and fraudu-lently and without her authority and against her will and contrary to her
11instructions and, accordingly, that he had failed and neglected to performhis duty. One plea of the defendant was that he did not know that he had noauthority to settle and that he had settled in good faith and without fraud.Another plea was that there had been no restriction on the exercise of hisdiscretion and that he had acted without fraud or negligence and in goodfaith and in the exercise of the best of his judgment and in the honest exerciseof his discretion. In his direction to the jury Pollock C.B. said that all that thelaw requires from a counsel in a cause is that he shall discharge his duty tothe best of his ability and that the defendant was not responsible if heintended to act honestly and for the benefit of his client. On behalf of theplaintiff. Pollock C.B. was asked to leave the question to the jury whether thedefendant entered into the compromise wilfully and without the authorityof his client but the learned Judge thought that that would not constitute acause of action. After the jury had found for the defendant on all the issuesa rule nisi for a new trial on the ground of misdirection was granted andwas argued before the Court of Exchequer. The rule was discharged. TheCourt held that an advocate at the English bar, accepting a brief in the usualway, undertakes a duty but does not enter into any contract or promiseeither express or implied: he takes upon himself an office or duty in theproper discharge of which not merely the client but the Court in which theduty is to be performed, and the public at large, have an interest. The Courtheld that the conduct and control of a cause are necessarily left to counsel.They added:
" If a party desires to retain the power of directing counsel how the" suit shall be conducted, he must agree with some counsel willing so to" bind himself. A counsel is not subject to an action for calling or not" calling a particular witness, or for putting or omitting to put a particu-" lar question or for honestly taking a view of the case which may turn" out to be quite erroneous. If he were so liable counsel would perform" their duties under the peril of an action by every disappointed and" angry client."
They also held that " no action will lie against counsel for any act honestly" done in the conduct or management of the cause ".
It is to be observed that the Court accepted that counsel owed a duty:the duty was one which was owed to the client and also to the Court andalso to the public. The Court might have been content to say that as counselis vested with a discretion as to how he will conduct a case he will have adefence when sued if he asserts that he exercised his discretion honestly. Butthe Court went further and laid it down that for any act honestly done inthe conduct and management of a cause no action will lie against counsel.The basis of this would seem to be that as counsel owes a duty to the publicand to the Court as well as to his client, the public interest and the admini-stration of justice require that he should not be subject to an action in respectof such complaints as " calling or not calling a particular witness or for" putting or omitting to put a particular question or for honestly taking a" view of the case which may turn out to be quite erroneous ". The questionnow arises whether this view is correct and whether today justification forit continues to exist.
The statement of the Court in Swinfen v. Lord Chelmsford that anadvocate takes upon himself a duty in the discharge of which the client andalso the court and also the public had an interest was a statement made inreference to litigation. The context in which the words which I have quotedwere spoken was that of " the conduct or management of the cause ". Thewords were spoken in reference to an advocate at the English bar becauseonly such an advocate could have conducted the case in the court in whichthe first cause of Swinfen v. Swinfen was tried. The reasoning of the decision,if it is correct, would seem to me to apply to the advocate in litigation whether he be either a barrister or a solicitor.
Although it was not argued on behalf of the Appellant in this case that abarrister enters into a contractual arrangement, I see no reason to doubt thatwhen retained a banister owes a duty to exercise due and reasonable careand skill. In this respect he is, in my opinion, in the same position as themembers of other professions. The duty is owed, quite irrespective of contract, and quite irrespective of the receipt of any reward or honorarium.It is owed when the work is undertaken which he is instructed to do.Accordingly, in my view, there cannot be, and indeed there ought not to be,any question of any one profession being in a special position, save, if atall, in such limited way as the public interest demands.
By way of illustration of general principle it is helpful to refer to someof the authorities which are in the books. The case of Lanphier v. Phipos in1838, 8 C. and P.475 was a medical case. The plaintiffs were husband andwife. The defendant was a surgeon and apothecary. He was employed bythe husband. He was employed by the husband to attend to the wife who hadsuffered an injury to her right hand and wrist. An allegation was made in theaction of careless, negligent and unskilful treatment. In summing up tothe jury, Tindal C.J. said—
" Every person who enters into a learned profession undertakes to" bring to the exercise of it a reasonable degree of care and skill. He" does not undertake if he is an attorney that at all events you shall gain" your case, nor does a surgeon undertake that he will perform a cure:" nor does he undertake to use the highest possible degree of skill. There" may be persons who have higher education and greater advantages" than he has but he undertakes to bring a fair reasonable and com-" petent degree of skill and you will say whether in this case the injury" was occasioned by the want of such skill in the defendant. The question" is whether this injury must be referred to the want of a proper degree" of care and skill in the defendant or not. The action is not brought" for any injury sustained by the husband but it is brought" by the wife for the injury which she has sustained by the loss of the" use of her hand. The husband must be joined in the action but the" damages are to be given for the injury sustained by her."
In Hart v. Frame, 6 Cl. and F. 193, there was an appeal against interlocutorsof the Court of Session in Scotland. Certain masters employed an attorneyto take proceedings against their apprentices for misconduct. The attorneyspecifically proceeded on the section of the Statute which related to servantsand not to apprentices. It was held that there was such want of skill ordiligence as to render the attorney liable to repay to his clients the damagesand costs occasioned by his error. The Lord Chancellor (Lord Cottenham)said: —
" Professional men possessed of a reasonable portion of information" and skill according to the duties they undertake to perform and" exercising what they so possess with reasonable care and diligence" in the affairs of the employers certainly ought not to be held liable" for errors in judgment whether in matters of law or discretion. Every" case, therefore, ought to depend upon its own peculiar circumstances:" and when an injury has been sustained which could not have arisen" except from the want of such reasonable skill and diligence or the" absence of the employment of either on the part of the attorney the" law holds him liable. In undertaking the client's business he under-" takes for the existence and for the due employment of these qualities" and receives the price of them. Such is the principle of the law" of England and that of Scotland does not vary from it."
The case of Donaldson v. Haldane (in 1840) 7 Cl. and F. 762, was a somewhathard one. The defendant, a writer to the signet, was the ordinary attorneyfor a borrower. He acted in the matter of a particular loan for the lenderbut he made no charge against the lender for his services. The securityhe took was not sufficient. It was held that he was properly charged as anattorney acting on the retainer and employment of the lender and was inthat character liable to an action for damages for the loss suffered throughthe insufficiency of the security. After the death of the lender two of hissisters applied to him to do what was necessary. The means taken to securethe repayment of the loan on the continuation of it were insufficient. Itwas held that as representing the interest of the deceased and on their ownaccount the sisters were entitled to compensation from the attorney. LordBrougham said—" his conduct in volunteering his services does incline one
" to think that the liability he incurred in point of law is somewhat hard" upon him: but still I cannot doubt that he is liable."
In the case of Rex v. Bateman in 1925, 94 L.J.K.B. 791, it was said in thejudgment of the court at page 794 in reference to the civil liability of amedical man—
" If a person holds himself out as possessing special skill and knowledge" and he is consulted, as possessing such skill and knowledge, by or" on behalf of a patient, he owed a duty to the patient to use due caution" in undertaking the treatment. If he accepts the responsibility and" undertakes the treatment and the patient submits to his direction and" treatment accordingly, he owes a duty to the patient to use diligence," care, knowledge, skill and caution in administering the treatment" No contractual relation is necessary, nor is it necessary that the service" be for reward."
In line with the principles illustrated by such cases as the above (and bysuch a case as Pippin v. Sheppard, 11 Price 400) were the observations ofScrutton, L.J. in Everett v. Griffiths [1920] 3 K.B. 163 at page 193, and theobservations in your Lordships' House in Banbury v. Bank of Montreal [1918]A.C. 626 at pages 682 and 689, and in Hedley Byrne and Co. Ltd. v. Heller& Partners Ltd. [1964] AC 465.
It follows from what I have said that, in my view, there is no sound legalprinciple which can support or justify the broad and sweeping statementsthat have in the past been made that barristers are in all circumstancesimmune from liability. Doubtless it has often been thought that their inabilityto sue for fees leads to that result. Some such idea may have been involvedin what Lindley, L.J. said (at page 494) in Le Brasseur v. Oakley [1896]2 Ch. 487-
" But I think it is of the utmost importance that the Court should not" assist barristers to recover their fees. If they do so the whole relation" between a barrister and his professional client will be altered and a" door will be opened which will lead to very important consequences" as regards counsel. The inevitable result will be to do away with" that which is the great protection of counsel against an action for" negligence by his client."
(See also the Irish case of Robertson v. Macdonogh [1880] 6 L.R. Irish 433.)
The immunity of barristers has been referred to in books of authority. InHalsbury's Laws of England (Third Edition) Volume 3, it is stated atpage 46:—
" The principle which prevents a barrister from suing the client for" his fees i.e. the mutual incapacity of counsel and client to contract" with reference to the services of counsel, also prevents the client from" suing counsel."
" If a barrister acts honestly in the discharge of his duty, he is not" liable to an action by his client for negligence, or for want of skill," discretion or diligence in respect of any act done in the conduct of" a cause, or in settling drafts, or in advising."
To take another example, in Winfield on Torts (7th Edition) page 185, it issaid that:
" The reason for this exemption is that in theory his services are" gratuitous, and although that, by itself, is not a sufficient ground for" preventing a legal duty from arising in other circumstances, the rule" with regard to the barrister is inveterate, whatever be its justification."
That would seem to be a very fair summary of the situation as it has beenunderstood to be. But now that the matter has called for examination I cannotthink that the rule, though long accepted, ought to continue save to suchextent as sound and valid justification for it can be shown to exist. It maywell be, however, that down to the present time, having regard to the widestatements that are to be found in the authorities, all concerned must bedeemed to have proceeded on the basis that barristers have been in all casesimmune from suit (see The Queen v. Doutre 9 A.C. 745 at page 752).
14I pass, therefore, to consider whether so far as concerns what is said ordone in the conduct or management of a case in Court the public interestrequires that an advocate should have immunity. In the first place, it will behelpful to examine the nature of the duty which is owed by an advocate. Ithink that it must be true to say, as was said in Swinfen v. Lord Chelmsford,that the duty undertaken by an advocate is one in which the client, the Courtand the public have an interest because the due and proper and orderlyadministration of justice is a matter of vital public concern. The advocatehas a duty to assist in ensuring that the administration of justice is notdistorted or thwarted by dishonest or disreputable practices. To a certainextent every advocate is an amicus curiae. In the Irish case of The Queenv. O'Connell [1844] 7 Ir. L.R. it was said by Crampton, J. (at page 313) thatthough an advocate for an individual is retained and remunerated for hisservices " yet he has a prior and perpetual retainer on behalf of truth and" justice ". His duty to the client is to exercise a reasonable degree of care andskill. In the nature of things that, in turn, involves that he must makedecisions which call for the exercise of personal judgment. Hemust in the honest exercise of his discretion decide what questions toput and what witnesses to call. It would seem to result from this that inmost cases it would be an effective answer to an allegation of negligence tosay that the course that had been followed in litigation was that which theadvocate in the honest exercise of his discretion had deemed it advisableto follow. It is the discretion of the chosen advocate upon which the clientmust rely. When a case is concluded it can often happen that in retrospectthere are cogitations as to whether if this or that additional question had beenput or if this or that question had not been put or if some further witnesshad been called the result might have been different. In many cases it isprobable that the result would not have been different. In some cases itmight only be those who judicially determined the first case (the Judge ormembers of a jury) who could really supply the answer. If in retrospectit were thought that had a case been differently conducted the result wouldpossibly or probably have been different, it might be that the view wouldbe held that the advocate had honestly exercised his discretion but hadbeen guilty of certain errors of judgment not amounting to negligence. Theduty of the advocate is, however, not merely to act honestly: his duty alsois to exercise a reasonable degree of care and skill. In the case of suchadvocates as can and do enter into contractual arrangements the duty arisesex contractu but in other cases the duty arises out of and by reason of therelationship between the advocate and the client who has sought his assistance.Though in most cases, by reason of the special and distinctive featuresof the work of advocates in which personal discretion is so much involved,assertions of negligence could readily be repelled, a cause of action alleging professional negligence could nevertheless always be framed. Is it, then,desirable in the public interest, while rejecting the wide immunity which has hitherto been proclaimed, to retain an immunity relating only to thelimited field of the conduct and management of a case in Court? Is it, as amatter of public policy, expedient that actions which involve a searchingreview almost amounting to a re-trial in different actions of previous actions orcases already concluded should not be allowed? Is the administration ofjustice (which is so much the concern of the community) better promotedif such actions are not countenanced? If it is recognized that there could besome cases where negligence (as opposed to errors of judgment) could beestablished, is it nevertheless on a balance of desirabilities wise to disallowthe bringing of such cases? In my view, the answer to these questionsis that it is in the public interest that such actions should not be brought.In this, as in other aspects of the present case, I find myself in generalaccord with the judgment of Salmon, L.J.
It will be useful to consider some of the circumstances that would ariseif such actions were permitted. If someone has been tried on a criminalcharge and has been convicted it would not be of any purpose for him toassert that his counsel had been unskilful unless he could prove that hewould have been acquitted had his counsel conducted the case with due care
15and skill. He would have to prove that on a balance of probability. Hewould, however, only have been convicted if the jury had been sure that hisguilt had been established. If he asserts that, had his counsel asked somemore questions than he did ask, the jury in the criminal case or the Magistrateswould have acquitted him, would he be entitled in his negligence action tocall as witnesses the members of the jury or the members of the Bench ofMagistrates who had convicted him? I have no doubt that it would beagainst public policy to permit any such course. If there were a convictionby a majority verdict of ten to two, could one of the ten be called to say thathad there been further questions put to some witness he would have agreedwith the two jurors? Again, that, in my view, would be procedure thatought not to be permitted. If there were a jury in the civil action fornegligence they would have to decide whether, on the assumption that theadditional questions had been put, there probably would have been anacquittal. Presumably they would have to review all the evidence that hadbeen given in the criminal case. They would either need to have a transcriptof it or they would have to hear the witnesses who had previously givenevidence. After a period of time the witnesses might not be available. Thetranscript might not be obtainable. If obtainable it might relate to a trialthat had taken not days but weeks to try. But assuming that all thenecessary evidence was available and assuming that memories were notdimmed by the passing of time, the civil jury would in effect be required tobe engaged in a re-trial of the criminal case. That would be highly undesir-able. And supposing that after a criminal trial a person was convicted andthen appealed unsuccessfully against his conviction and later brought a civilaction against his counsel alleging negligence: if he succeeded, would anyprocedure have to be devised to consider whether or not it would bedesirable to set aside the conviction. The conviction (as in the presentcase) might have taken place years before. Any sentence of imprisonmentimposed might have been served (as in the present case) long before. Ifin the civil action the suggestion was made that, had there been furtherevidence called or further questions put in the criminal case, there mighthave been a disagreement rather than a conviction, this only serves to demon-strate how difficult it would be for a court to decide on a balance ofprobabilities what the jury in the criminal case would have done had therebeen different material before them. A trial upon a trial would raisespeculation upon speculation.
It may be said that these considerations merely point to the difficulties thatwould lie in the way of success by a convicted person who brought anaction. (The difficulties would be greater in the case of a private prosecutorwho, being disappointed by the acquittal of someone who had been prose-cuted, brought an action for negligence against prosecuting counsel. Apartfrom the difficulties of proving damage, it would surely be highly undesirablethat an issue whether someone was guilty of an offence should be tried inproceedings to which he was not a party). But, in my view, the considerationsto which I have referred are of deeper and more fundamental significance.The procedure regulating criminal trials and the machinery for appeals incriminal cases is part of the structure of the law. Much of it is statutory.In practice the Judges who preside at criminal trials do what they canto ensure that the case of an accused person, whether he is represented orwhether he is not, is fairly and adequately presented. If there is an appealthere are rules which regulate the approach of the appeal court and whichapply to such matters as to whether evidence will be heard on appeal orwhether a new trial will be ordered. In practice it is unlikely that, owing tosome want of care, counsel would refrain from calling at the trial a witnesswho was thought to be dependable and whose testimony would certainlysecure an acquittal. It is to be remembered also that an accused personis at liberty to give evidence on his own behalf. A system which is devisedso as to provide adequate and reasonable safeguards against the convictionof innocent persons and to provide for appeals must nevertheless aim at somemeasure of finality. If the system is found not to be adequate then it canbe altered and modified: it can be kept continually under review. I cannotthink, however, that it would be in the public interest to permit a sort of unseemly excrescence upon the legal system whereby someone who has beenconvicted and has, without success, exhausted all the procedures for appealopen to him should seek to establish his innocence (and to get damages)by asserting that he would not have been convicted at all but for the factthat his advocate failed to exercise due care and skill.
Many of these considerations have parallel validity in regard to complaintsof lack of care and skill in a civil action. It is true that courts must notavoid reaching decisions merely because there are difficulties involved inreaching them. It may not be impossible in certain circumstances for onecivil court to decide that an earlier case in a civil court (one, for example,tried by a Judge alone) would have had a different result had some differentcourse been pursued, though in most cases there would be likely to bevarious difficulties in the way of reaching such a conclusion. But it would,in my view, be undesirable in the interests of the fair and efficient administra-tion of justice to tolerate a system under which, as a sort of bye-product afterthe trial of an action and after any appeal or appeals, there were litigationupon litigation with the possibility of a recurring chain-like course of liti-gation. The quality of an advocate's work would suffer if, when decidingas a matter of discretion how best to conduct a case, he was made to feelthat divergence from any expressed wish of the client might become thebasis for a future suggestion that the success of the cause had thereby beenfrustrated. It would be a retrograde development if an advocate were underpressure unwarrantably to subordinate his duty to the Court to his dutyto the client. While, of course, any refusal to depart at the behest of theclient from accepted standards of propriety and honest advocacy would notbe held to be negligence, yet if non-success in an action might be blamedupon the advocate he would often be induced, as a matter of caution, toembark on a line of questions or to call a witness or witnesses, though hisown personal unfettered judgment would have led him to consider such acourse to be unwise. It must be recognised that there must, in the past, havebeen instances where a lack of due care and skill has resulted in the lossof a case. Such instances may unhappily occur in the future. It becomes,therefore, a matter of balancing the public advantages and the public dis-advantages which are the result of an immunity of the advocate from a suitalleging negligence in the conduct and management of a court case. In myview, the public advantages outweigh the disadvantages. They do so over-whelmingly in respect of criminal cases and considerably so in respect ofcivil cases. It has always been the policy of the law to ensure that trialsare conducted without avoidable strains and tensions of alarm and fear.If a witness, whose testimony involves uttering words defamatory of others,was under any fear of having an action brought against him on accountof what he said in Court, the due administration of justice would be impos-sible. In order that the protection of a witness may be complete and sothat it is not circumvented by the making of an allegation that the testimonywas false or was perjured or was given maliciously, the immunity from suitis absolute. No action lies in respect of evidence given by witnesses inthe course of judicial proceedings, however false or malcious it may be,though naturally everyone is bound by the criminal law and if perjury can beproved a criminal prosecution may result. The immunity from civil suit isfounded upon reasons of public policy and, as was pointed out in Marrinanv. Vibart [1963] 1Q.B. 528, 536, the protection which the law affords to wit-nesses is not given as a benefit for them but is given for a higher interest, i.e.,that of the advancement of public justice. So also the immunity from civilsuit in respect of words spoken in court applies to the parties to a case: itapplies to Judges: it applies to advocates. In Munster v. Lamb (1883) 11Q.B.D. 588 the Plaintiff brought an action for defamation against a solicitorin respect of words he had spoken as an advocate. The action failed and anappeal from the judgment of Mathew J. was dismissed. In his judgmentMathew J. said—
" It may be inconvenient to individuals that advocates should be at" liberty to abuse their privilege of free speech subject only to animad-" version or punishment from the presiding Judge. But it would be a" far greater inconvenience to suitors if advocates were embarrassed or" enfeebled in endeavouring to perform their duty by the fear of" subsequent litigation."
In his judgment in the Court of Appeal Brett M.R. (at page 603) said:- " A counsel's position is one of the utmost difficulty. He is not to" speak of that which he knows; he is not called upon to consider," whether the facts with which he is dealing are true or false. What he" has to do, is to argue as best he can. without degrading himself, in" order to maintain the proposition which will carry with it either the" protection or the remedy which he desires for his client. If amidst" the difficulties of his position he were to be called upon during the" heat of his argument to consider whether what he says is true or false," whether what he says is relevant or irrelevant, he would have his mind" so embarrassed that he could not do the duty which he is called upon" to perform. For, more than a judge, infinitely more than a witness, he" wants protection on the ground of benefit to the public."In Watson v. McEwan [1905] AC 480 it was held that the privilege whichprotects a witness from an action of slander in respect of his evidence inCourt also protects him against the consequences of statements made to theclient and to the solicitor in preparing the proof for trial. Lord Halsburysaid that the immunity of a witness from responsibility in an action afterevidence has been given by him in a Court of Justice was too well estab-lished to be shaken. In that case it was clearly recognised (see page 487)that it is " public policy which renders the protection of witnesses neces-sary ". It must be recognised that the relationship between the advocateand the client differs from relationship between the client and an adversewitness or between the client and a juror but it is desirable in the publicinterest that a case in court should be regarded by all concerned as beinga solemn occasion when the utmost endeavour is being made to arrive onceand for all at the truth and to achieve a fair and just result. The atmospheremust be created in which every person concerned is given full opportunityto play his part. There can be procedure and machinery for appeals andthe effectiveness of appeal procedure can be kept under review, but theattainment of finality must be an aim of any legal system. In the nature ofthings it would seem to be undesirable if, when the litigationis over and appeals have been heard there can be an inquest upon it all,or a further re-opening of it all. in the form of an action against the advocatealleging that it was his fault that the case had not been differently decided.The successful party in the litigation would not be involved in or be aparty to the later action, yet in that action the assertion would be madethat he had wrongly gained the victory. If a petitioner for divorce failedto obtain a decree and in an action against his advocate claimed that hewould have succeeded but for some fault on the advocate's part, theremight be enquiry as to whether the respondent to the petition had been guiltyof a matrimonial offence: the enquiry would be taking place in proceedingsto which the respondent was not a party. Such procedure could not bedesirable or could not on balance be in the public interest. Though thevery nature of advocacy is such that there would be manifest difficulties inproving that but for some faulty conduct or management of a case in Courtthere would have been a different result, it is not this circumstance whichwarrants an immunity from suit. It is warranted and only warranted by thevarious considerations of the public interest to which I have referred.I would dismiss the appeal.
Lord Pearce
MY LORDS,
The issue in this case is whether the action should be allowed to continueor whether it should at this stage be dismissed. Two separate underlyingproblems have been raised. Is counsel liable to be sued for negligence underthe law as it now stands? And, if not, should the law be altered so that infuture he becomes liable?
Mr. Rondel was charged at the Old Bailey with causing grievous bodilyharm to Manning with intent. He obtained the services of the Respondenton a dock brief (i.e. by payment of £2 4s. 6d.). The Respondent thendefended him. He was convicted. The only defence suggested by Mr.Rondel either then or later was self defence. There was indeed no otherpossible defence. It is undisputed that he seriously injured Manning. Hesaid to the Judge in chambers: " I tore his hand in half and bit part of his" ear off". He himself did not suffer a scratch. In the Court of Appeal,apparently, he exulted in his ability to inflict such injuries without the aidof a weapon and resented the allegation that he must have used a knife,which he considered a reflection on his prowess. When asked by the Judgein chambers whether he was suggesting that he would have been acquittedif his counsel had conducted his case properly, he said " No ". Apparentlyhis complaint against his counsel is that he failed to reveal and prove incross-examination of prosecution witnesses and by demonstration thatManning's wounds were not caused by a knife, and failed by cross-examination of the police or by calling Rachman (the well known slumlandlord) and Nash to prove that Mr. Rondel was not in the habit of usinga knife (a piece of evidence whose admissibility I would doubt) and thatMr. Rondel was in the employ of Rachman and was on the premises inthat capacity.
There was also a further complaint described in his amended statementof claim in these words:
(3) " Allowing my witness Miss Hogan to be unjustly discredited and" ridiculed arising out of the defendant's failure to neutralise the" prosecution counsel's relatively shattering ' revelation ' that Miss Hogan" could not see into the passage-way from her bedroom window and" letting this irrelevant nonsense over swamp her vital evidence that" she saw four West Indians after some heated discussion follow me" into the passage. And not saw them and me actually in the passage."
It is always inconvenient to a party when his witness is shown in cross-examination to have been saying that she saw things which it was physicallyimpossible for her to see. There is no known prescription by which counselcan " neutralise " such a " revelation " or stop a jury from drawing reason-able inferences from it. Nor, in the interests of justice, is it very desirablethat such a magic should exist.
If one uses a little practical common sense in approaching the case, oneor two things are obvious. It was, on the face of it, a difficult and, onemight almost say, a fairly hopeless case. Mr. Rondel had inflicted severeinjuries on a man and emerged scatheless. The only real hope was thatMr. Rondel could by obvious honesty in the way he gave his evidencepersuade the jury that he was really being beset and that unfortunately in selfdefence he did more injury that he intended. If he appeared so obviouslyhonest and said (as no doubt he did say) that he used his teeth and not aknife the jury would probably accept that. But that was not the importantpoint of the case. A close cross-examination on whether it was his teethor a knife might well give the impression that he was seeking to justify thatbarbarous behaviour and thus antagonise a jury and make them less receptiveof Mr. Rondel's story as a whole. Evidence that he was an accreditedemployee of Rackman might also have an alienating effect. And if Rackmanhad been called, a cross-examination of him by the prosecution might havehad a very adverse effect. All these things are difficult matters of speculation.Hindsight is as unreliable a guide to them as foresight. When counsel wisheson reflection at the end of a case that he had asked a question or called awitness or (about equally often) that he had not asked that question or calledthat witness, it may well be that the thing, which he now wishes otherwise,helped rather than hindered his case in the minds of the jury, if the truthcould be known, which it cannot.
One of an advocate's difficult tasks is to persuade his client that many ofthe questions which he wishes counsel to ask may quite possibly injurehis case by the answers they evoke. Cross-examination cannot in general shake
a really careful, honest witness; it merely makes his carefulness and honestymore obvious and gives him an opportunity of driving in the nails harder,or, it may be, of driving in more nails. One of the merits of great advocateshas often been that they have asked in cross-examination only one question toevery ten that a less good advocate would have asked. And where ten possible points were available they would often ruthlessly select the best, sacrificenine, and thereby win on the tenth. Lesser advocates, being more oppressedby a desire to please their clients so far as it is possible and consistent witha proper conduct of the case, may select more points and thereby slightlyimpair the force of their advocacy. A judge appreciates this compromise andwill allow them some sympathetic leeway, since he, too, is most anxiousthat the clients should be satisfied. But if a barrister was liable to accountin respect of points, or evidence, or questions which he discarded, he wouldobviously be inclined to take every point, to ask every question, and to callevery witness. Nor, in that event, could a judge fairly complain of this.
Even assuming that Mr. Rondel's account of the matter be true, thereseems to me no substance in his complaint. Moreover he has chosen to letnearly six years pass before he put it forward and it is now too late to putany real reliance on the recollections of anybody concerned. With every daythat passes the memory becomes fainter, and the imagination more active—a human truism of which one finds endless examples in accident cases.
The judge gave Mr. Rondel an opportunity to amend the statement of claim(which he found almost unintelligible) and an amended statement of claimwas put forward. In that Mr. Rondel attempted to insert an allegation thatMr. Worsley was " fraudulent" in accepting the dock brief, a statement forwhich he gave no justification whatever. The amended statement of claimwas struck out. Mr. Rondel stood by his amended statement of claim and didnot obtain leave to amend it further. The action was dismissed.
By the time the case came to the Court of Appeal Mr. Rondel had hadlegal advice and produced a re-amended statement of claim which now willhold water as a legal document, whether or not there is any substance oftruth behind it. That document shows that, contrary to what Mr. Rondelhad previously maintained, he is now seeking to say that but for his counsel'snegligence he would never have been convicted at all. It is admittedly amatter of discretion whether, when a pleading is struck out, the Court willgive leave to amend. Where there appears to be good faith and a genuinecase the Court will allow extensive amendments almost up to the twelfthhour in order that the substance of a matter may be fairly tried. But whena party changes his story to meet difficulties, that fact is one of the mattersto be taken into account.
In Lawrence v. Norreys 39 CD. 213 at 237—a case which was struckout under the inherent jurisdiction—Fry, L.J. said :
" Then in the next place we have the history of these pleadings. We" have the evolution of the plaintiff's claim in its struggle for existence," and we find it gradually growing up and developing as the difficulties" are pointed out by the judges of the successive courts before which it" comes. The impression produced on my mind is that we have here" the evolution of a myth, and not a gradual unfolding of real facts."
The majority of the Court of Appeal (since the learned Master of the Rollsdid not deal expressly with the point) held that no leave should be given toput in a re-amended statement of claim and that the action should thereforebe dismissed. Salmon, L.J. said:
" I agree with Danckwerts, L.J. that it would be most unjust at this" stage to allow this re-amended statement of claim to be delivered some" seven-and-a-half years after the plaintiff's claim is alleged to have" arisen in an action which is clearly as devoid of merit as it is of any" prospect of success."
There was ample material on which that decision could be made in theexercise of discretion. Moreover, it was plainly right.
The history of this case has, in its general lines, followed a patternwhich is not unfamiliar. Even in your Lordships' House many hours arespent each year (and in the Court of Appeal the numbers are naturally larger)in listening to wholly unbalanced attempts to re-open, without justification,a case which a party has lost and which, by brooding over it, he can nolonger see in an objective light. Disgruntled by a decision, he reflects onvarious side issues (often quite irrelevant or at least not matters of decisiveimportance) of which he now considers that the judge failed to take anyaccount or any sufficient account. Two frequent symptoms of such cases arethat they are brought forward years after the event and that the strength of thecomplaint increases as the years roll by. In the present case one sees notonly the first symptom in that the writ was issued nearly six years afterthe event, but also the second symptom in that having after six years con-sidered that he would not have been acquitted even if his counsel hadperformed his task well, he now purports to change his mind and afterseven and a half years seeks to say that he would have been acquitted.Another frequent symptom of such cases is that a plaintiff seeks to giveadditional momentum to his complaints by throwing in charges of " fraud "and " conspiracy ". It is interesting to note that in the present case thatsymptom also occurs. When the first statement of claim was struck out,Mr. Rondel sought in an amended statement of claim to embellish his attackby alleging that Mr. Worsley was "fraudulent" in allowing himself to beselected for a dock brief.
The reason, however, why so unmeritorious and hopeless a case has beenallowed a hearing in this House was that it raised questions of generalimportance. On these your Lordships have had the advantage of athorough, fair and lucid exposition by counsel on both sides.
The first question is whether, under the present law, counsel is liable fornegligence.
The gradual evolution of the duties and liabilities of those concerned inthe legal process over the centuries is obscure. There is no case in whicha barrister has ever been held liable for negligence. But there is clearand binding authority that barristers were not liable in 1791. In Fell v.Brown (1791 Peake 131 ; 170 E.R. 104) Lord Kenyon firmly ruled that noaction would lie against counsel for negligence. His Lordship added thathe believed this action was the first, and he hoped it would be the lastof the kind. Thomas Erskine for the plaintiff was asserting in his openingto the jury that he could, on the facts, prove gross negligence (crassanegligentia) but on Lord Kenyon's ruling he had to accept a non-suit andapparently there was no appeal. Since Erskine was not a man who wouldlightly take no for an answer, one may assume that his contention did notsuffer from lack of argument.
In 1842 Lord Abinger, C.B., in the case of Perring v. Rebutter (2 Moodyand Robinson 429) held that an action for negligence would not lie againsta certificated special pleader, and said :
" Such an action was certainly not maintainable against a barrister," and in his opinion there was no distinction between the case of a" barrister and that of a certificated special pleader."
In Scotland the law was similar to that in England. In 1845 in Purves vLandell (12 Cl. and Fin. 91, at 103) Lord Campbell said:
" Against the barrister in England and the advocate in Scotland" luckily no action can be maintained."
In Ireland in Mulligan v. McDonagh, Q.C. (1860 Irish Jurist 101)Pigott. C.B., giving the judgment of the full Court, said:
" This is an action brought against a barrister for neglect of duty." Such an action cannot be maintained, as the points raised have been" abundantly ruled, we have only to follow the decisions already made" on the subject."
21
In 1860 the position of counsel was discussed at length in the case ofSwinfen v. Chelmsford (5 H. and N. 890; 157 E.R. 1436). There was a veryfull argument and a careful citation of the various early dicta and relevantauthorities including those relating to gratuitous acts. It was held that counselwas immune from suits for negligence and could not, in the absence ofdishonesty, be sued in respect of his conduct of a case. This view was notbased on his inability to sue but on public policy and the fact that in hismanagement of a case he was in a different position from other professionalmen. The unanimous opinion of the Court, consisting of Pollack, C.B.,Martin, Bramwell, Channell and Watson, B.B., was (at 921):
" A counsel is not subject to an action for calling or not calling a" particular witness, or for putting or omitting to put a particular" question, or for honestly taking a view of the case which may turn out" to be quite erroneous. If he were so liable, counsel would perform" their duties under the peril of an action by every disappointed and" angry client."
And later (at 923):
" no action will lie against counsel for any act honestly done in the" conduct or management of the cause."
In their view (at 920):
" A barrister is to be considered, not as making a contract with his" client but as taking on himself an office or duty, in the proper discharge" of which not merely the client but the Court in which the duty is to" be performed, and the public at large, have an interest."
In 1876 in Scotland the Court of Session (Bachelor v. Pattison 3 R. 914)once again held that a claim for negligence would not lie against an advocate.The Lord President (at 918) there said:
" An advocate in undertaking the conduct of a cause in this Court" enters into no contract with his client, but takes on himself an office" in the performance of which he owes a duty, not to his client only," but also to the Court, to the members of his own profession, and to" the public. From this it follows that he is not at liberty to decline," except in very special circumstances, to act for any litigant who" applies for his advice and aid, and that he is bound in any cause that" comes into Court to take the retainer of the party who first applies to" him. It follows, also, that he cannot demand or recover by action" any remuneration for his services, though in practice he receives" honoraria in consideration of these services. Another result is that" while the client may get rid of his counsel whenever he pleases, and" employ another, it is by no means easy for a counsel to get rid of" his client. On the other hand the nature of the advocate's office makes" it clear that in the performance of his duty he must be entirely" independent, and act according to his own discretion and judgment" in the conduct of the cause for his client. His legal right is to conduct" the cause without any regard to the wishes of his client so long as" his mandate is unrecalled and what he does bona fide according to his" own judgment will bind his client and will not expose him to any" action for what he has done, even if the client's interests are thereby" prejudiced. These legal powers of counsel are seldom, if ever," exercised to the full extent, because counsel are restrained by" consideration of propriety and expediency from doing so. But in such" a case as this, it is necessary to have in view what is the full extent" of their legal powers."
Thus the Courts have clearly accepted the principle that owing to theparticular part which he plays in the judicial process counsel cannot be suedfor negligence in his conduct of a case. There were a few dicta in earliertimes which appear to indicate a contrary view. These were all collected withgreat industry by Mr. Kennedy in 1863 in the case of Kennedy v. Broun (143E.R. 268) which was concerned with counsel's right to sue for fees. But asErle, C.J. pointed out in giving the judgment of the Court (at page 730) those dicta " are all considered and overruled in the action of Swinfen against Lord" Chelmsford". And (at page 731) "they are mere remarks in the course" of an argument and not adjudications ; and they were expressly overruled" as before mentioned."
It is argued that this immunity sprang from the fact that barristers for:reasons of status cannot sue for fees: and that, since the case of HedleyByrne has held that work may impose a liability for negligence even thougtya defendant had no contract with, and received no remuneration from, theplaintiff, the immunity no longer holds good. But the hypothesis that theimmunity stems from the inability to sue for fees is unsound.
The inability of a barrister to sue for fees is deep rooted in the law. Itwas fully investigated in Kennedy v. Broun (Supra). The meticulous argu-ment of Mr. Kennedy went back in history to Roman times. Erle, C.J.(with whom were Williams, Byles and Keating JJ.) said at page 727:
" We consider that a promise by a client to pay money to a counsel" for his advocacy whether made before or during or after the litigation" has no binding effect; and furthermore, that the relation of counsel" and client renders the parties mutually incapable of making any" contract of hiring and service concerning advocacy in litigation. For" authority in support of these propositions we place reliance on :the" fact that in all the records of the law, from the earliest time till now," there is no trace whatever either that an advocate has ever maintained" a suit against his client for his fees in litigation or a client against an" advocate for breach of a contract to advocate ; and as the number" of precedents has been immense, the force of this negative fact is" proportionately great."
After considering relevant authorities he said that they established theproposition that—
" the relation of counsel and client in litigation creates an incapacity to" contract for hiring and service as an advocate. If the authorities were" doubtful and it was necessary to resort to principle, the same" proposition appears to us to be founded on good reason."
He then proceeded to point out the peculiar relationship in which anadvocate stood and founds his reasoning on grounds which are clearly thoseof public policy. Inter alia he said:
" The law trusts him with a privilege in respect of liberty of speech" which is in practice bounded only by his sense of duty ; and he may" have to speak on subjects concerning the deepest interests of social" life, and the innermost feelings of the human soul. The law also trusts" him with a power of insisting on answers to the most painful question-" ing; and this power again, is in practice only controlled by his own" view of the interests of truth. It is of the last importance that the" sense of duty should be in active energy proportioned to the magnitude" of those interests. If the law is, that the advocate is incapable of" contracting for hire to serve when he has undertaken an advocacy." his words and acts ought to be guided by a sense of duty, that is to" say, duty to his client, binding him to exert every faculty and privilege" and power in order that he may maintain that client's right, together" with the duty to the Court and himself, binding him to guard against" abuse of the powers and privileges entrusted to him by a constant" recourse to his own sense of right."
It may be that the Court was putting the matter too high in some of thereasons which it gave for deciding that there was an absolute incapacity tocontract (see The Queen v. Doutre 9 A.C. 745). But the long line ofdecisions that a barrister cannot sue for his fees, whether directly or by obliquemethods such as proof in bankruptcy (even in a case where a bankruptsolicitor had actually received the fees to pay counsel; re Sandiford [1935]1 Ch. 681), is consistent. And, in my opinion, it is firmly based on publicpolicy.
23
Nearly fifty years before Kennedy v. Broun, Best, J. In 1819 in Morrisv. Hunt 1 Chitty 544 at 550 had used arguments based on publicpolicy when dealing with an argument that as the plaintiff was not liableto be sued for his counsel's fees, the unsuccessful defendant should nothave to pay them on taxation:
" Nothing, he said, can be more reasonable than that counsel should
" be rendered independent of the event of the cause, in order that no" temptation may induce them to endeavour to get a verdict, which in" their consciences they think they are not entitled to have. Counsel" should be rendered as independent as the judge or the jury who try" the cause when called upon to do their duty."
Such thoughts as these, based upon public policy, plainly underlay boththe inability to sue and the inability to be sued. It is clear that one did notspring from the other. They both sprang independently from similar publicconsiderations.
It is argued that Lindley, L.J. in re le Brasseur and Oakley [1896] 2 Ch.487 (which affirmed the view in Kennedy v. Broun that a barrister wasunable to contract) took the view that the immunity was dependent on theinability to sue, when he said, purely obiter (at 494):
" But I think it is of the utmost importance that the Court should not" assist barristers to recover their fees. If they do so, the whole relation" between a barrister and his professional client will be altered, and" the door will be opened which will lead to very important consequences" as regards counsel. The inevitable result will be to do away with" that which is the great protection of counsel against an action for" negligence by his client."
I think he was meaning no more than that if the Court were to alter theindependent position of counsel with regard to fees (a suggestion which, hethought, would be wrong) it would lead also to its altering his independentposition with regard to suits for negligence (which also he thought would bewrong).
In my opinion, two considerations, apart from the language used in thecases, tend to confirm the view that immunity did not arise merely out ofthe inability to sue, but independently of it though from the same source ofpublic policy. In Scotland the doctrine of consideration does not apply, yetthe Scottish judges have been in no doubt that there was an immunity.And Lord Kenyon, who firmly held that barristers could not be sued, was alsothe judge who held in Wilkinson v. Coverdale(1 Esp. 75) that a gratuitousact or omission could found a liability in damages for economic injury bynegligence—a view of the law to which in the case of Medley Byrne [1964]A.C. 465 it returned after its recession in 1893 in le Lievre v. Gould (1893)1 Q.B. 491 based on an erroneous view of Deny v. Peek 14 A.C. 337.
When the law on grounds of public policy has excluded the liability of abarrister to be sued, was it saying that there was no right in a plaintiff,or was it saying that there was a right but that the Courts would not as amatter of policy enforce it by action, as, for instance, it has said in the case of awagering contract? I think that the terms of the various judgments makeit clear that the former was the basis of the Courts' decisions.
To what extent have the opinions in Hedley Byrne affected the position?Those opinions were dealing in the main with situations in the nature ofcontract where but for the absence of consideration there would be a contract(see especially the opinion of Lord Devlin). But to say that they are confinedto such situations would be to take too narrow a view. The special circum-stances, however, in which the law will infer an assumption of liability arethose in which such an inference is a fair reading of the relationship in whichthe parties stand. On the facts in Hedley Byrne's case the existence of adisclaimer of liability by the defendant Bank was held to preclude theestablishment of such a relationship. In the present case also it is clear fromthe circumstances that there was no such assumption of liability.
In the first place, the law having on grounds of public policy deliberatelyexcluded an assumption of liability from the relationship of barrister andclient, could not consistently impose it under a different guise or by adifferent route. It was excluded not as a matter of defect in procedure(i.e. by the absence of a contract) but as a matter of substantive policy. Onemay take a rather distant analogy. The law has decided that an infant, thoughliable in tort, shall not be liable on contractual matters which are to hisdetriment. It is plain, I think, that in a matter on which contractuallyan infant would not be held liable, he could not be made liable, on and side-wind, by the principle in Hedley Byrne's case.
Secondly, the existence of this established principle or usage of abarrister's immunity would operate as an effective disclaimer no less than thedisclaimer of the Bank in Hedley Byrne's case. Unless and until that principleor usage is altered, it would be fictitious for the law to infer an assumptionof responsibility that is quite contrary to the clear understanding of theparties.
Thirdly, a barrister is bound to accept a brief, and therefore one cannotinfer from his mere acceptance a voluntary assumption of liability.
Moreover, there is the point that since Lord Kenyon held in Wilkinsonv. Coverdale (supra) that there could be a liability in respect of the breachof a gratuitous undertaking which resulted in economic loss, he viewed thelaw somewhat on Hedley Byrne lines, and his ruling in Fell v. Brown (supra)that a barrister could not be sued would therefore be equally applicable bofhbefore and after the decision in Hedley Byrne.
It is erroneous to suppose that it is Hedley Byrne which has, for the firsttime since le Lievre v. Gould (supra), laid down that there may be gratuitousresponsibility in negligence resulting in purely economic damage. HedleyByrne, it is true, broadened the approach to the problem. But the argumentin the present case, so far as it is based on the principle in Hedley Byrne thatthere may be liability for gratuitous advice, could with equal force have beenadvanced at any time in the last fifty years under the case of Nocton v.Ashburton [1914] A.C. 932 where a solicitor was held liable in negligenceto Lord Ashburton although the solicitor was not employed by him but byanother party. So, too, it could, I think, have been advanced at any timefrom the late 18th century (Wilkinson v. Coverdale (supra)) until the lawbecame cramped by le Lievre v. Gould (supra) in 1893 or possibly by Denyv. Peek (supra) in 1889. Yet the law during all that time has consistentlyheld that a barrister cannot be sued for negligence.
The law has not differentiated between the liability of a barrister in litiga-tion and in his other non-litigious work as a barrister. In Mostyn's case 5 Ch.App. 487 the Court expressly affirmed Kennedy v. Brown (supra) in respectof non-litigious fees. And it is also clear that the various rulings withregard to the immunity of a barrister from liability for negligence wereintended to cover all his work as a barrister. In my opinion, therefore, underthe law as it now stands and has stood for some two hundred years (andperhaps considerably more) a barrister cannot be sued for negligence inrespect of his work as a barrister.
The position with regard to a solicitor is different. No doubt when the lawwas evolved in regard to his responsibility the solicitor was not regarded asthe advocate who stood between the client and the judge. In the particularpattern that our legal system evolved that function normally rested oncounsel. The solicitor's main function was not litigation. And when hewas engaged in litigation he was primarily concerned (under contract) inemploying and instructing counsel, carrying out his advice and organisingthe case behind the lines, e.g. in obtaining the evidence which counsel needed,in taking proofs from witnesses, securing their attendance and the like. Inrespect of these functions it was assumed and held that he was liable innegligence on his contract
An attorney was held liable for failing to instruct counsel properly orto attend and have witnesses available when a case was called on. and hewas made to pay the costs of the resulting adjournment (Hawkins v.Harwood (1849) 154 E.R. 1312). He has been held liable for failing to examine a witness before trial and had to pay 40/- nominal damages (Hatchv. Lewis (1879) 175 E.R. 1145). He has been held liable for allowing acase to be called on without ascertaining that a necessary witness was avail-able (Reece v. Rigby (1821) 106 E.R. 912) and for employing as expertwitness a drunken surveyor without troubling to make sure that he had takenproper measurements (Mercer v. King175 E.R. 822). And it has been heldan answer to an attorney's claim for fees that he erroneously told the partiesthat they need not attend because it would be adjourned (Montrioux v.Jefferies (1825) 172 E.R. 51).
All these are matters in which he was in breach of his contract with hisclient in the organisation of the case for presentation to the Court.
In Ferguson v. Lewis (1874) 14 L.J. at the Mayor's Court a solicitor washeld liable for breach of contract (but not gross negligence) in failing toappear as an advocate at a magistrates' court, as he had agreed to do, andhe had to pay five guineas damages in addition to the two guineas which hehad received as his fee. His real defence appears to have been that evenDemosthenes could not have secured the acquittal of his client. He did alsolay claim to an advocate's immunity, but this contention in the absence ofany precedent was rejected. Nor was it a very satisfactory case for sucha contention in that he never did any advocacy but merely in breach of hiscontract failed to come to Court.
There has been cited to us a case in which a solicitor's negligence inadvocacy has been held to disentitle him to sue for his bill of costs in thewhole matter and not merely for the fees relating to the attendance whichhe mishandled (Stokes v. Trumper 1855 69 E.R. 766). On an examinationof witnesses on commission when intending to cross-examine by interroga-tories settled by counsel he negligently examined in chief certain witnesseswhereby the case was lost. I find the report far from clear as to exactlywhat happened. But there is no trace in it that the question of the immunityof an advocate was ever raised.
In Munster v. Lamb ((1883) 11 Q.B.D. 588) however the matter clearlycame up in respect of a solicitor's protection as an advocate in respect ofslander. There it was plainly assumed in his favour that he was entitled tothe same protection as counsel when acting in Court as an advocate. It wasargued on his behalf that though his conduct was improper " his words were" protected from being made the subject of an action by reason of his" privilege as an advocate " (at 594). Mathew J. then went on to considercases dealing with the position of a judge and witnesses and counsel, clearlyequating the solicitor advocate to counsel. In the Court of Appeal Brett M.R.(at page 599) said :
" This action is brought against a solicitor for words spoken by him" before a court of justice whilst he was acting as the advocate for a" person charged in that court with an offence against the law."
And (at page 600):
" I cannot find that there has been a decision of a Court of law with" reference to such facts as are now before us, that is with regard to a" person acting in the capacity of counsel; but there have been decisions" on analogous facts; and if we can find out what principle was applied" in these decisions upon the analogous facts, we must consider how far" it governs the case before us."
The chief point of the case was whether the advocate's immunity was alimited or a complete immunity covering all remarks whether bona fideor malicious, relevant or irrelevant. Brett M.R. decided that it was thelatter, basing all his reasoning on the assumption that the solicitoradvocate had the same protection as counsel. He gave as his reasons forthe decision (at page 603):
" A counsel's position is one of the utmost difficulty. He is not to" speak of that which he knows ; he is not called on to consider whether" the facts with which he is dealing are true or false. What he has to" do, is to argue as best he can, without degrading himself, in order to" maintain the proposition which will carry with it either the protection" or the remedy which he desires for his client. If admist the difficulties" of his position he were to be called upon during the heat of his argu-" meat to consider whether what he says is true or false, whether what" he says is relevant or irrelevant, he would have his mind so em-" barrassed that he could not do the duty which he is called on to" perform. For more than a judge, infinitely more than a witness, he" wants protection on the ground of benefit to the public. The rule of" law is that what is said in the course of the administration of the law" is privileged; and the reason for that rule covers counsel even more" than a judge or a witness."
In my opinion, on the reasoning of that case which extended to a solicitoradvocate on grounds of public policy the same immunity as counsel, asolicitor, while performing counsel's function in a court of law, would beentitled in spite of his contract to the same immunity from suits fornegligence.
Since that is how the law stands to-day, one comes to the second question :" Ought it to be altered in the public interest? "
On a quick, superficial view, one may well say that a client ought to havea right to sue his counsel for damage due to his negligence. But the matteris worthy of more than a superficial consideration. For the present indepen-dence of counsel is a carefully considered part of a great legal system whichhas commanded admiration from various parts of the world.
The legal process inevitably creates hardships and it is not always easyto see what is the right balance. In attempting to do so one must regardthe interrelation of the various parts.
It is a hardship that a man who has done no wrong should be subjectedby a plaintiff to a baseless charge, in meeting which he will incur largeexpense. The charge may be reported largely in the newspapers and injurehis reputation. And if a plaintiff can by untruth persuade the legal aidfund that he has a good case, the public purse will back the plaintiff'sunjust attack. And yet if it is finally proved baseless, the public purse willnot pay the innocent defendant's expenses or recompense the injury to hisreputation. The reason for this latter hardship is that it is rightly con-sidered that when a plaintiff's case has a prima facie appearance of truth(which of course cannot be truly evaluated until there has been investigationof both sides) it is wrong that it should be stifled for lack of funds. Thislatter hardship will probably be removed in time by the obvious remedyof the State regularly paying the costs in cases where it has erroneously(as the subsequent events show) backed a case. But the basic hardship isinevitable and will always remain, namely, that any plaintiff can use thelegal machine as a sounding board for untruthful allegations and cause harm,trouble and expense to an innocent defendant, and yet the law holds him(and the Press who report the case) immune from paying damages for theiruntruth. Yet to remove this immunity would create a great injury to justice.Without it, the honest litigant might not dare to bring an honest claim forfear that if he fails he might be sued for damages.
For the same reasons witnesses are immune. It is a cruel hardship if anuntruthful witness not only slanders a man in court by harmful allegationsmade negligently, unreasonably or dishonestly against him, but actually bysuch evidence leads a judge or jury to enter an erroneous judgment againsthim. Yet what can one do about it? The only remedy would be to allowthe injured party to retry the issue, to prove that the witness was untruthful,and to get damages against him for the loss he has negligently or untruth-fully inflicted. Superficially that is the fair answer to the problem. But theCourts have rejected that superficial answer. Why?
A distinguished judge of the High Court of Australia, Starke, J. in Cabassiv. Vila 1940 (64 C.L.R. 130), citing many English authorities said (at 140):" no action lies in respect of evidence given by witnesses in the course" of judicial proceedings, however false and malicious it may be. any" more than it lies against judges, advocates and parties in respect of" words used by them in the course of such proceedings or against juries" in respect of their verdicts."
In that case Starke, J. held that no cause of action law in respect even ofconspiracy with regard to evidence at the trial, a decision approved andapplied by our Court of Appeal in Marrinan v. Vibart [1963] 1 Q.B. 528.And in Hargreaves v. Bretherto [1959] 1 Q.B. 45, Goddard, L.C.J. in holdingthat an action for damages for perjury would not lies against a witness said:
" For if such an action could be brought, then in these days, when" the state provides legal aid, half the prisoners in England would try" to bring actions and there would be an abundance of these actions in" in the Courts, which would be a most important result."
And the law has even extended this immunity to defamatory things said by aproposed witness to a party and a solicitor with a view to preparing a proofof what evidence the witness may give in Court (Watson v. Macewen [1905]A.C. 480). Lord Halsbury (at page 487) there said:
" It is very obvious that the public policy which renders the protec-" tion of witnesses necessary for the administration of justice must as a" necessary consequence involve that which is a step towards and is part" of the administration of justice—namely the preliminary examination" of witnesses to find out what they can prove. It may be that to some" extent it seems to impose a hardship, but after all the hardship is not" to be compared with that which would arise if it were impossible Jo" to administer justice, because people would be afraid to give their" testimony."
Thus, the reasons underlying the immunity of witnesses are; first, thatthere would otherwise be a series of retrials and, secondly, that an honestwitness might be deflected by fear of the consequences.
The Courts might have limited the protection to things which are relevantand necessary to the matters in issue and spoken bona fide. But so importanthas it considered the functioning of the judicial process that it has given acomplete immunity even to words spoken mala fide or maliciously orirrelevantly.
Some may think that this is a mistaken view, in that it creates many hard-ships for which there is no relief. But it has been consciously and consistently(and, as I think, rightly) adopted by the courts of this country, regardlessof the hardship that it often causes, in order that a greater ill may be avoided,namely, the hampering and weakening of the judicial process.
So, too, a juryman is protected from liability for the damage caused by abiased or stupid or negligent or malicious verdict. This is not intended as aprotection for a biased or negligent or malicious juryman. It is intended toprotect the fair, careful and honest juror. And it cannot avoid protecting theother kind as well.
So with a judge. He cannot be sued for an act done in his judicial capacity,event though corrupt (Scott v. Starsfield1868 L.R. 3 Exch. 220).
And on the fringe of the judicial process is the press, which may withimpunity spread damaging libels provided that they are a fair and accuratereport of judicial proceedings published without malice—a valuable andnecessary immunity on grounds of public policy, yet one which sometimescauses great and unfair hardship. This is not an immunity designed to pro-tect the press for their personal benefit. It is an acknowledgment that theyhave an important function in informing the public of what is happening incourts of law. And they cannot perform that function properly if they haveto look over their shoulder at the possibility of writs for libel, which mightdeter them from informing the public.
The five essential ingredients of the judicial process at the trial are theparties, the witness, the judge, the juror and the advocate. If all those arefunctioning at their best, only very hard coincides of fate can cause a mis-carriage of justice. If one of them is not at his best the functioning of theothers tends to correct the balance. I do not believe that justice miscarriesas often as some would have one believe. But of course the loser naturally hasa tendency to believe and an interest in maintaining that there has been an
injustice. And when justice does miscarry I think it is more often becausetwo or three of the components were not functioning at their best, ratherthan because of the specific negligence of one of them.
All those essential ingredients are, under the law as it now stands, whollyprotected in what they say and do (save that counsel is answerable to profes-sional discipline for misbehaviour). Should he alone of the five be liable tohis client in damages? He, like the judge and jury, has a plain duty of careand a duty to justice. He also has a duty to the judge and jury not to misleadthem. But whereas the judge and jury owe this duty of care equally to bothsides, he owes it primarily to one side (subject to his overriding duty to theCourt and justice). And whereas the judge and jury are paid by the publicof whom both parties are members, the advocate is paid by one side onlyin many cases (though in very many he is paid by legal aid from the publicpurse). Should these two facts make the difference, and exclude him fromthe immunity which has from of old been given to him as well as to theother components of the judicial process? The answer to this depends onwhether one holds that the judicial process is of paramount public import-ance and whether one believes that it would be harmed by excluding theindependence and immunity of counsel.
The law has given the advocate complete immunity for what he saysin court (Munster v. Lamb (supra)) Mathew J. there said (at 594):
" It may be inconvenient to individuals that advocates should be at" liberty to abuse their privilege of free speech, subject only to animad-" version or punishment from the presiding judge. But it would be a" far greater inconvenience to suitors if advocates were embarrassed" or enfeebled in endeavouring to perform their duty by fear of subse-" quent litigation. This consequence would follow that no advocates" could be as independent as those whose circumstances rendered it" useless to bring actions against them."
On those grounds one must obviously continue to preserve counsel's inde-pendent immunity from liability for putting forward against the other sidedefamatory contentions which may afterwards prove to be baseless. (If heputs them forward without any reasonable grounds he will in fact get intotrouble from professional discipline).
One must obviously, I would think, continue to preserve the client like-wise from liability for wrongly causing such contentions to be put forwardby his advocate, great as may be the harm that they may cause.
But will it harm the functioning of the courts if the advocate becomessomewhat less independent and although not answerable to the other partyor anybody else, is made answerable to his own client? The advantage ofmaking him answerable in the cases (which I hope and believe are fewand far between) where the client has suffered from his negligence areobvious. Although the client cannot get relief in respect of loss caused bythe faults of the judge, jury, opposing party or opposing advocate, he couldat least get reimbursement for that caused to him by the fault of his ownadvocate.
So far as concerns providing a spur to the advocate by the possibilityof actions for negligence, this is unnecessary. Both solicitors and counselare always keen to win a case and, incidentally, to give satisfaction to theirclients so far as this is compatible with their duty to the Court and to theirprofessional standards. This is as inevitable a part of their human makeupas is the ambition of every judge to decide his cases right. Their dangerrather lies in that they may be too keen to win. Thus to provide a spuris bad rather than good.
The obvious disadvantages of withdrawing immunity from the advocateare as follows: On occasions it is an advocate's duty to the Court to rejecta legal or factual point taken in his favour by the judge, or to remove amisunderstanding which is favourable to his own case. This duty is of vitalimportance to the judicial process. Fortunately it does not very frequentlyoccur in a glaring form, though in a minor degree it is fairly constant.When it does occur in a glaring form, it is very unpleasant for the advocate.
It is hard for him to explain to a client why he is indulging in what seemstreachery to his client because of an abstract duty to justice and professionalhonour. In the difficult border-line case it is undesirable that a man shouldbe in danger of being influenced by the possibility of an action for negligence.The Court has and must continue to have implicit trust in counsel.
Moreover, in every case there is a large number of irrelevancies andside issues that seem important to the client but are not of help in deciding'the case. The solicitor in preparing a case for counsel is rightly loth toprune these too severely, for he is nearer to the client than is counsel, andit is therefore more difficult for him to do it. He frequently (and rightly)leaves it to counsel to perform that task. The Court by tradition is entitledto expect counsel to perform it. Were the client but able to appreciate it,its performance is the surest way of winning a just case. How hard this isfor the client to appreciate is known to every advocate. And this is manifestin so many hopeless appeals where the Appellant's chief ground of complaintis that the judge has failed to give weight to some irrelevant matters onwhich the client sets great store.
It is important to justice that it should not get bogged down in irrelevantdetails. The judge in this is often at the mercy of the advocates who havea clearer view than he can have as to which matters in the leading ofevidence or in cross-examination will or will not turn out to be relevant asthe case proceeds. As things stand at present the judge trusts counsel.It is frequent for a judge to say to counsel " I should not have thought it" was relevant, but if you tell me it will turn out to be relevant, I shall allow" it". It is impossible to expect an advocate to prune his case of irrelevancesagainst his client's wishes if he faces an action for negligence when he doesso. Prudence will always be prompting him to ask every question andcall every piece of evidence that his client wishes, in order to avoid therisk of getting involved in just such an action as the present. This is adefect which the possibility of an action for negligence would greatlyencourage. It is difficult and it needs courage in an advocate to disregardirrelevances which a forceful client wishes him to pursue.
This question is of great importance for two reasons. First, ifby good advocacy a case is cut down to its essentials, it is more manageableand more likely to be justly decided by judge or jury. Secondly, the time(and consequently the cost) is greatly diminished. An unpruned presentationof a case may actually double or treble the time which it would have takento present had it been properly pruned of all that was not relevant.
If, as I believe to be the case, the number of our judges in proportion tothe work they do is much fewer than in other countries, this is undoubtedlydue in great measure to the fact that a judge can trust counsel and thatcounsel can, in putting forward his points or his evidence or in cross-examining, safely look only to what the judge properly needs for decidingthe case. Hitherto he has not had to look over his shoulder and ask questionsin cross-examination or put forward evidence or take points whose solepurpose is to assure the client that no stone has been left unturned, so thathe may not follow a defeat by instituting an action for negligence againsthis counsel.
Great stress is laid on the argument that the immunity of the advocateis " anomalous " to other professions. But the whole judicial process isanomalous to other professions. It is a thing on its own. It is a uniqueand important process of the community. The various ingredients of itare immune in respect of the occasional hardships they may create by anyfailure on their part. And even the press which is not part of it but whichperforms a service in respect of it shares this immunity. It can just as wellbe said that it would be an anomaly to make the advocate, alone among theother ingredients, liable for his failure in the judicial process. In truththe facile use of the word " anomalous " does not advance the matter.
It is argued forcibly that inability to sue his counsel is an unjustifiable" deprivation " to the litigant. But in this connection one has to consideralso what privileges the litigant himself receives on precisely these samegrounds of public policy. He himself is immune from claims for all the
damage which he himself may cause (and it may be severe) both to theother party and to any third party by the bringing of his action, and all theallegations which are made in it by him (or by his counsel on his behalf)whether negligently, unreasonably, maliciously or fraudulently. And thehonest, reasonable litigant benefits by this immunity in that he is whollyfree from the expensive risk of a subsequent unjustifiable attack on thosegrounds. Particular cases are in no way decisive or even indicative of theproper balance. In the present case, however, it would seem not improbablethat Mr. Rondel is considerably the gainer by his own immunity. Andthough each immunity may in particular cases cause hardship the balanceis not, I think, unfair as it stands at present and certainly it is not so unfairas to outweigh the cogent factors of public policy which tell in its favour.
In so far as it may be argued that the advocate is unduly fortunate insharing the immunity of his fellows in the judicial process, the judges, jurymenand witnesses, one must remember that he is faced with a difficult task,as Brett, M.R. and Lord President Inglis pointed out (supra). He is entrustedwith great licence and potent weapons. These must not be used simplywith an eye to his client's advancement. They must be used in the pursuitof justice and to elucidate the truth in the public interest with an approachwhich is as biassed in favour of his client's contentions as public considerationsallow. The constant difficulty of inducing men and women to undertakethe profession of the Bar, with its strain, hazard and rather austere self-discipline, are not wholly without significance when one is considering whetherthe advocate is unduly favoured as things stand at present.
A further important consideration is the fact that as matters are and havebeen for centuries a barrister is bound to provide his services to a clientwho can pay his fee (or whose fees are paid by the public Legal Aid fund)if the case is one either in the Courts or in the advisory sphere in whicha barrister normally practises. This has been an essential feature of ourlaw. Many generations of students have been taught to follow Erskine'sfamous words in which he justified his unpopular defence of Tom Paine:" From the moment that any advocate can be permitted to say that he will" or will not stand between the Crown and the subject arraigned in the" Court where he daily sits to practise, from that moment the liberties of" England are at an end."
It is easier, pleasanter and more advantageous professionally for barristersto advise, represent or defend those who are decent and reasonable and likelyto succeed in their action or their defence than those who are unpleasant,unreasonable, disreputable, and have an apparently hopeless case. Yet itwould be tragic if our legal system came to provide no reputable defenders,representatives or advisers for the latter. And that would be the inevitableresult of allowing barristers to pick and choose their clients. It not infrequentlyhappens that the unpleasant, the unreasonable, the disreputable and thosewho have apparently hopeless cases turn out after a full and fair hearingto be in the right. And it is a judge's (or jury's) solemn duty to find thatout by a careful and unbiassed investigation. This they simply cannot do,if counsel do not (as at present) take on the less attractive task of advisingand representing such persons however small their apparent merits. Is one,then, to compel counsel to advise or to defend or conduct an action for sucha person who, as anybody can see, is wholly unreasonable, has a very poorcase, will assuredly blame some one other than himself for his defeat andwho will, if it be open to him, sue his counsel in order to ventilate his grievanceby a second hearing, either issuing a writ immediately after his defeat orbrooding over his wrongs until they grow greater with the passing years andthen issuing the writ nearly six years later (as in the present case)? Thisobvious difficulty is fairly acknowledged by Mr. Blom-Cooper. He seeksto mitigate it by the ingenious suggestion that the solicitor (who is allowedto pick and choose his clients) may act as a screen or filter to protect counseland that the Legal Aid Fund may do likewise. But with all respect to thatargument it does not meet the case. First, it is not fair to solicitors or theLegal Aid Fund that they should have any such responsibilities to counsel.They have their own difficulties (which are great) in trying to decide which are the honest cases and should be brought (or defended) and it is theywho should be entitled to help from counsel in this. Secondly, and farmore important, it is contrary to the whole tenor of our law that thereshould be such a screening and that any prisoner or litigant should be unable(though he can pay for it) to obtain the services of counsel. It would greatlyincrease the number of litigants in person, who already create not inconsider-able difficulties. And it is to the great advantage of the Courts that theunreasonable should be advised and represented by counsel, who cangenerally, to some extent, by firm suasion, mitigate their unreason and findsome via media by which their case can be presented intelligibly and reason-ably.
I agree with Erskine that it would cause irreparable injury to justice ifthere were any departure from the code which has so long existed, that abarrister cannot pick and choose. To continue to compel him to take cases,yet at the same time to remove his independence and immunity wouldseem unfair and unreasonable. Moreover, in a human world such an unfairruling rarely produces a satisfactory result. It results in evasions and thepayment of mere lip-service to the rule—evasions which any fair mindeddisciplinary tribunal would in the circumstances find it hard to condemn.And thus evasions would increase. In my view, such a rule would createa harm disproportionate to that which it seeks to remedy.
The independence of counsel is of great and essential value to the integrity,the efficacy, the elucidation of truth, and the despatch of business in theadministration of justice. These matters are of paramount importance.The suggested innovation must lessen that independence and do an increasingand inevitable disservice to the administration of justice. I would not,therefore, agree with it.
In opening his appeal Mr. Blom-Cooper fairly pointed out the difficultiesof exercising from the major part of counsel's work those matters which areonly remotely if at all, connected with the Courts. It would produce, to usehis own words, " a jagged edge ". And Mr. Dunn emphasised these difficulties.Perring v. Rebutter (supra) showed clearly that the immunity was notconfined to things done in Court, and the language of the Courts dealing withcounsel's immunity clearly created no exceptions. It is obvious that counsel'sopinions, not only those on which an action is to be started or not started(whether for the guidance of a solicitor or the Legal Aid Fund), owe aduty of honesty to the Courts, and should be written with fearless indepen-dence. And therein lies much of their value. Moreover, it is important thatin respect of these and of other paper-work the counsel should not beallowed to pick and choose his clients. If a man, however unreasonableor undesirable, wants to have counsel's advice or paper work he should beentitled to have it. If such a position is to remain unaltered, I do notthink that it is either reasonable or desirable to change the present indepen-dent immunity of counsel. The loss to the public as a whole would begreater than the gain. It follows that I agree with the majority of theCourt of Appeal.
I would dismiss the appeal.
Lord Upjohn
my lords,
If a barrister on his way to plead his client's case in the Courts was askedwhether he would be liable in damages to his client if he mishandled thecase, I think the answer, no doubt after some observations as to the absurdityof such a possibility, would be that a barrister is immune from liabilityfor negligence in conducting his case. If pressed why the barrister should bein this uniquely favourable position, I think that (before this case) counselwould reply: " Because there is no contract between a barrister and his303747 D*
" client; the barrister is not entitled to sue for his fees, they are given to" him as an honorarium, so per contra the client cannot sue the barrister for" his negligence ".
If the barrister delved into this matter he would find much authority tosupport his view. He would undoubtedly cite the case of Le Brasseur v.Oakley [1896] ch. page 487, a decision of the Court of Appeal, and rely onthe observations of Lindley L.J. at page 493 when he said:
" But I think it is of the utmost importance that the Court should" not assist barristers to recover their fees. If they do so the whole" relation between a barrister and his professional client will be altered" and a door will be opened which will lead to very important" consequences as regards counsel. The inevitable result will be to do" away with that which is the great protection of counsel against an action" for negligence by his client."
The inference from that is plain ; inability to sue for fees and immunity fromactions for negligence are correlative. He would find support, too, for this viewin other cases, such, for example, as the Irish case of Robertson v.MacDonagh L.R. 6 Irish page 433 at 438 and in the very recent case of Lopesv. Adams and Vanier [1965] 9 W.I.R. 183 at 187 decided in the SupremeCourt of British Guiana. The test books, too, would support him. See, forexample, 3 Halsbury volume 3 page 46 paragraph 66 and Winfield on Torts14th ed. page 185 though doubting its justification (the last edition has beenaltered as a result of Hedley Byrne) and Salmond on Torts 14th ed. page 83.Counsel for the Appellant argues that if that is the true ground of the immunityof counsel from negligence it is a bad one and that your Lordships should holdthat no longer to be the law. I see much force in that submission and thequestion of immunity must be examined in detail; but before doing so thereare three matters which may be stated which are not in dispute and are indeedcommon ground. First, it is clear that counsel cannot sue for his fees. Thishas been established for nearly two hundred years and it is usually put uponthe ground that a barrister is of too high an estate to condescend to thecommon arena to sue his client. Fees must be regarded as pure honoraria(see Thornhill v. Evans 2 Atkyns 330 per Lord Mansfield and re May 1858Jurist new series 1169, Kindersley V.C.). It is true that Bayley J. in Morris v.Hunt 1 Chitty 544 at 551 put it on a more realistic though humdrum basis thatcounsel should ensure that he is paid before the case and the matter shouldnot be left to chance afterwards, so that he cannot thereafter maintain anaction ; not a very good reason. Best J. in the same case really put theinability of counsel to sue upon the ground of public policy, namely, thatcounsel should not thereby have any temptation to endeavour to get a verdict.However, whatever reason may be ascribed it is clear that counsel cannotsue for his fees and this applies equally to fees for non-litigious work (seeMostyn v. Mostyn 5 Ch. A. 957) though that was only a matter of admission,but in principle the admission was clearly right.
Secondly, a barrister does not enter into a contract, express or implied,with his client or with the solicitor who in all matters pertaining to litigationnecessarily stands between the barrister and the lay client except in the caseof dock briefs. At one time it was left open whether a barrister could expresslyor impliedly contract with his client in litigious matters though I have nodoubt it would always have been regarded as a breach of professionaletiquette for him to do so ; but I regard it as settled by Kennedy v. Broun13 C.B.N.S. 677 that in fact counsel is incapable of doing so. Parentheticallythe necessity for the marking of a fee on a brief before counsel appears incourt is only because it is entirely contrary to the etiquette of the bar that heshould admit his fee to depend on the result (see Bayley J. in Morris v. Hunt(supra)). This incapacity to contract is important, for counsel for theRespondent founds an argument upon it to which I must later return. Tosum up the result of these two points, fees due to counsel create no debt:Wells v. Wells [1914] P.D. 157 ; re Sandifords [1935] Ch. 681.
Thirdly, although in the times of the Year Books, as the painstakingjudgment of Lawton J. has shown, barristers could have been sued fornegligence, at that time, as the learned judge points out, the distinction betweenan attorney and a barrister was far from clear. Such liability was indeedregarded as arguable in the case of Bradish v. Gee(1754) Ambler 229. Butsince those days it is quite clear that no one has ever successfully sued abarrister for negligence. As long ago as 1791 Kenyon C.J. in Fell \. Brown170 E.R. 104 regarded this immunity as elementary and the great Erskinemust have agreed with him for he gave up his plea that a barrister could besued even for crassa negligentia. This has been accepted in every casesince (see for example Perring v. Rebutter (2 Moo. and R. 929); in ScotlandPurvey v. Landell12 Cl. and F. 91 and in Ireland Mulligan v. McDonagh,1860 Ir. Jur. 101) and was, in my opinion, subject only to the views of yourLordships settled in the case of Swinfen v. Chelmsford 5 H. and N. 890.
Nevertheless, counsel for the Appellant is entitled to urge that this so faradmitted immunity rests upon wrong grounds and that your Lordships shouldreconsider the whole matter.
My Lords, before considering the question of the alleged immunity ofcounsel one must examine the general law and test it in that light. Thegeneral principle is that if one undertakes to perform a service or give advicegratuitously for another in circumstances in which it is clear that the otherrelies upon those services or upon that advice then, gratuitous though thelabour or advice may be, the performer of the services or the giver of the adviceis liable to the other if he does so negligently. This was laid down by KenyonC.J. in the great case of Wilkinson v. Coverdale 1 Esp. 75 where he heldthat a plea (subsequently in fact not established) that the plaintiff could recoveron a gratuitous promise to effect a policy of insurance which he negligentlyfailed to carry out was maintainable. And see Tindal C.J. in Lanphier v.Phipos 8 Car. and P. 475 at 479 who stated the principle in most general terms:" Every person who enters into a learned profession undertakes to bring to the" exercise of it a reasonable degree of care and skill ".
This principle has frequently been restated and applied ; to give threeexamples all in your Lordships' House, see Nocton v. Ashburton [1914]A.C. 933 where Lord Shaw stated the principle, at page 972, though basingit on innocent misrepresentation by an adviser upon whose advice anotherwas entitled to rely; Banbury v. Bank of Montreal [1918] A.C. 626whereLord Atkinson, at page 689, took the example of the liability of a doctorfor negligent treatment even where a patient was insensible at the time andincapable of employing him ; and finally in Medley Byrne v. Heller [1964]A.C. 465where Lord Morris of Borth-y-Gest, at page 502, summed it up inthis way:
" If someone possessed of special skill undertakes, irrespective of" contract, to apply that skill for the assistance of another who relies" upon such skill a duty of care will arise."
Physicians suffered with barristers the like inability to sue for fees until thelaw was altered by statute in 1858 (since when only Fellows of the RoyalCollege of Physicians of London enjoy that disability) and this inabilityhas usually been expressed to be on the same ground as that of counsel,i.e. they with counsel, are of too high a standing to stoop to sue (see perKenyon C.J. in Charley v. Bolcot 4 T.R. 317 and Poucher v. Norman3 B. and C. 744). Nevertheless, physicians have constantly been found liablefor crassa negligentia in the advice or treatment that they have given (seeLanphier v. Phipos (supra) and Tippin v. Shephard 11 Price 400; Everitt v.Griffiths [1920] 3 K.B. 163 per Scrutton L.J. at 193. But it cannot bedoubted that a physician can contract with his patient, seldom though thismay happen. The liability of a physician cannot with any sense of realitybe distinguished from that of counsel as depending upon liability for trespassto the person.
So prima facie counsel undertaking his client's case falls within the generalrule that he will be liable for negligence. I have, I hope, said enough toshew his immunity (if it exists) from this general rule cannot depend on his status or his inability to sue (where he is in pari materia with a physician).In his incapacity to contract, he is to be distinguished from a physicianand upon this, as I have already mentioned, the Respondent founds anargument. It comes to this, that if counsel is incapable of contracting hecannot expressly or impliedly contract. It is said that the general rule fromWilkinson v. Coverdale to Hedley Byrne is based on a capacity to contractfor there must be something akin to contract to involve liability for agratuitous act; a voluntary assumption of liability is equivalent to a contractand some of the observations of your Lordships but in a different contextin the last mentioned case were relied on.
I cannot accept this view. It seems to me clear that prima facie counselfalls within the general principle. His lay and professional clients go tohim for his special skills in the field in which he practises; the greatestreliance is always placed on those skills as no one knows better than thebarrister concerned. To escape from the general rule merely because ofan incapacity to contract is a proposition which to-day is entirely unaccept-able, and not warranted by any authority.
Therefore, the immunity of the barrister, if it exists at all, must dependon some other ground than his status, his inability to sue or his incapabilityto contract. I think that public policy necessitates that, at all events inmatters pertaining to litigation, a barrister should have this immunity, andbasically it depends upon two factors. First, a barrister is in a uniqueposition, even different from a physician, for he is bound to undertakelitigation on behalf of a client provided that it is in the usual way of hisprofessional practice and that he is properly instructed or, to put it morebluntly, properly paid according to his standing at the Bar. Whatever maybe the powers of counsel to compromise civil litigation contrary to hisclient's instructions during its course there can be no doubt that, howevermuch he may believe it to be in the interests of his client that the lattershould plead guilty, if the client refuses to accept that advice counsel isbound to continue with the defence of the prosecution, however distastefulit may be. I make no apology for quoting yet again the famous words ofErskine when he accepted a brief to defend Tom Paine:
" From the moment when any advocate can be permitted to say" that he will or will not stand between the Crown and the subject" arraigned in the courts where he daily sits to practise, from that" moment the liberties of England are at an end."
That at once distinguishes the position of the barrister from even thephysician who is not bound to undertake any treatment which he doesnot advise.
The second and more important consideration is that the barrister isengaged in the conduct of litigation whether civil or criminal before thecourts. He is not an officer of the court in the same strict sense that asolicitor is ; if a solicitor fails in his duty to the court he is subject to thejurisdiction of the court which can, and in proper cases does, makesummary orders against him. The barrister is not subject to any suchjurisdiction on the part of the judge. To take a simple example: if asolicitor is not present in court personally or by an authorised representative,he is open to be penalised by being ordered to pay personally costs thrownaway at the discretion of the judge. If counsel is not present, it may bethat the judge will express his views upon the matter but I do not believehe has any power over counsel save to report him to the Benchers of hisInn. But while the barrister is not an officer of the court in that sense heplays a vital part in the proper administration of justice. I doubt whetheranyone who has not had judicial experience appreciates the great extentto which the courts rely on the integrity and fairness of counsel in thepresentation of the case. I do not propose to expand this at very great lengthfor it has been developed in the speeches of those of your Lordships whohave already spoken upon this matter ; but while counsel owes a primary dutyto his client to protect him and advance his cause in every way, yet he has aduty to the court which in certain cases transcends that primary duty. I thinkthat the Scots case of Batchelor v. Pattison 3 Rettie page 914 sets out at page 918, in a lengthy passage which I will not quote, a very useful description ofthe independent conduct required of counsel in the conduct of a case. But Imay mention some duties cast upon the barrister; if in a civil case the clientproduces a document which may be nearly fatal to his case it is the duty ofcounsel to insist on its production before the court; the client may want coun-sel to drag his opponent through the mire by asking a number of questionsin cross-examination in the hope that the opposition may be frightened intosubmission. Counsel here has equally a duty to the court not to cross-examine the opposition save in accordance with the usual principles andpractice of the Bar. In a criminal case it is the duty of counsel not to notean irregularity and keep it as a ground of appeal to the Court of Appeal(Criminal Division) but to take the point then and there. This may be seriouslyprejudicial to his client's case (see Neal [1949] 2 K.B. 590). Counsel is equallyunder a duty with a view to the proper and speedy administration of justiceto refuse to call witnesses, though his client may desire him to do so, ifcounsel believes that they will do nothing to advance his client's case orretard that of his opponent. So it is clear that counsel is in a very specialposition and owes a duty not merely to his client but to the true administrationof justice. It is because his duty is to the court in the public interest that hemust take this attitude. It is this consideration which has led to the immunityfrom defamation of counsel, as of the judge and the witnesses, for all that hesays in court, for all the questions that he asks and for the suggestions he maymake to the witnesses on the other side. This immunity is just as necessaryin his general conduct of the case as in the case of defamation, not to protectcounsel who abuses his position but to protect those who do not, for the reasonthat, in the words of Fry, L.J. in Munster v. Lamb11 Q.B.D. 588 " it is the" fear that if the rule were otherwise numerous actions would be brought" against persons who were merely discharging their duty ". Counsel maydeliberately decide beforehand not to call a witness but anyone who has prac-tised at the Bar knows the stresses and strains that counsel undergoes duringthe course of a case. It is all in public ; immediate decision may have tobe made as to whether to call or not to call a witness and even more quicklywhether to ask or not to ask a question. The judge may, for even judges arehuman, be perhaps unreceptive to counsel's case. All these circumstancesmay place counsel in a bad light with his client. If counsel is to be subjectto actions for negligence it would make it quite impossible for him to carryout his duties properly. I am not, of course, suggesting for one momentthat the fact that counsel does or does not call a witness, or does or does notask a question or does or does not ask to amend his pleadings could possiblyby itself be a cause of action for negligence, even if " jobbing backwards "on mature reflection it had been better if counsel had pursued an oppositecourse. The most that can be said is that he committed an error of judgment.But if the law is that counsel can be sued for negligence it is so difficult todraw the line between an alleged breach of duty where none in fact had beencommitted; a mere error judgment; and negligentia or indeed crassa negli-gentia and counsel might be sued in actions which may well turn out to bequite misconceived: this case may, indeed, be a very good example of it.But if the threat of an action is there counsel would be quite unable to givehis whole impartial, unfettered and above all, uninhibited consideration tothe case from moment to moment, and without that the administration ofjustice would be gravely hampered. So that in litigation it seems to me quiteplain that immunity from action is essential in the interests of the adminis-tration of justice as a whole upon the ground of public policy. Regrettablethough it may be. if in any case counsel does commit an actionable wrong(but for the immunity) the client who suffers must do so without requite inthe public interest.
I am quite unable to agree with the argument of counsel for the Appellantthat this immunity is any new ground of public policy. It is all part and parcelof the long-established general policy that judges, witnesses and counsel mustbe immune from actions arising out of their conduct during the course of liti-gation in the public interest. That is sufficient to dispose of this appeal.
However, your Lordships have had some discussion upon two cognatequestions; though they do not arise for decision they should be discussed.
The first question is as to the liability of a solicitor for acts of negligenceduring the conduct of his client's case in an inferior court when acting as anadvocate. I see no reason why a solicitor acting as an advocate should notclaim the same immunity as can counsel, in my opinion, for acts of negligencein his conduct of the case. But this principle, I have no doubt, must berigorously contained for it is only while performing the acts which counselwould have performed had he been employed that the solicitor can claim thatimmunity. Thus, for example, if he so fails properly to instruct himself hecannot claim any immunity. See the interesting Canadian case of Leslie v.Ball Upper Canada Reports [1863] page 512 where Hagarty, J. said:
" If a Canadian attorney, having full knowledge of certain material" facts or the existence of material facts or the existence of material" evidence uses his privilege of acting as counsel himself and wholly" omits urging such facts or calling such evidence, I think he cannot" complain if he be treated exactly as if he had omitted properly to" instruct counsel."
So, too, a solicitor who is going to act as the advocate cannot claimimmunity if he fails to appear at the right time on the duly appointed dayfor the hearing of the case, for, in contrast to the barrister who is incapableof contracting with his client, and for the reasons I have given is in anyevent immune, the solicitor is in breach of contract. See Fergusson v. Lewis(1874) 14 Law Journal page 700. So, too, a solicitor, although acting asadvocate, will be liable for negligence if he fails to give notice of appealwithin the proper time or if he fails to make diligent enquiry as to possiblewitnesses, or fails to make the proper arrangements for their attendance;although for my part I think that the case of Scudder v. Prothero and Protheroreported in the Times newspaper 16th March 1966 was probably wronglydecided on its facts. Lord Pearce in his speech has mentioned a numberof examples where an attorney has been held liable for breach of dutyand many other examples could be mentioned where a solicitor, even ifthe advocate in the case, would not be excused. So I think the generalresult is likely to be that a solicitor acting as advocate will only be immunefrom the consequences of his negligence while he is actually acting as anadvocate in court on behalf of his client or settling the pleadings. Thus hewould be immune if, having secured the attendance of witnesses, he neg-ligently fails to call one of them. The only reported case referred to yourLordships of a solicitor being held negligent for his conduct while engaged inwhat I may describe as pure advocacy is the case of Stokes v. Trumper2 K. and J. 232 before Page Wood, V.C. That case is so obscure and basedon procedure not current for very many years that I do not understand it.It may well be that it was, with all respect to that great judge, wronglydecided.
I appreciate that these general observations leave a large field for decisionof the limits of this doctrine of immunity in relation to solicitors whichI have only tentatively explored. Thus counsel in settling pleadings would,in my present though not final view, be immune from action if, being properlyinstructed upon the relevant facts, he failed to plead the relevant Statuteof Limitations. Would a solicitor be entitled to a similar immunity (seeFletcher v. Jobb [1920] 1 K.B. 275)?
The second question is whether counsel acting in non-litigious work wouldbe immune for giving advice negligently. But first, perhaps, I should,however tentatively, suggest where I think the immunity of counsel engagedin litigation should start. Clearly it must start before counsel entersthe doors of the Court to conduct the case. He will have had to givefearlessly to his client advice on the prospects of success; he will havesettled the pleadings; and on discovery; in his advice on evidence and onmany other matters he may have had to refuse to adopt his client's wishes.As a practical matter, I do no more than suggest that the immunity ofcounsel in relation to litigation should start at that letter before actionwhere, if my recollection is correct, taxation of party and party costs starts.
What, then, of the immunity of counsel before that stage or when actingin matters which could not possibly be described as pertaining to litigationbut rather as pure paper-work such as drafting of wills, settlements, con-veyance, real property contracts, commercial contracts, charter parties orgiving advice generally which are not done with a view to litigation butrather with a view to defining the rights of the parties and, in many cases, toavoid litigation. And in this class I think must be included that largeclass where settlements are entered into with a view to the avoidance ofsome fiscal liability probably at a later stage, though it may be recognisedthat such settlements may well be challenged by the Board of InlandRevenue at the appropriate time. I think this is a most difficult matter ; I findit very difficult to see upon what principle the immunity which all of yourLordships are agreed must, as a matter of public policy, be granted to counselwhile acting in litigious matters should extend to matters which are notlitigious. It is true that the case of Perring v. Rebutter 2 M. and R. 429 hasbeen quoted as an authority that counsel's immunity extends beyond litigiousmatters. But I do not myself think that the authority goes that far. Inthe old days a special pleader could not appear in court but he was essentiallyone who was concerned with settling the pleadings which were all part ofthe court action. So, as I have ventured to define the area of litigation,the special pleadings would fall within it. Nor for my part can I deriveany assistance from Mostyn's case (supra) in this respect. I can find nothingin that report which goes to counsel's immunity. However, in my opinion,there is this to be said. I cannot myself see that the case of Hedley Byrnehas made the slightest difference to the liability of counsel if it exists in thisrespect. If there is, as I think, any liability upon counsel in respect of non-litigious matters that was inferentially pointed out in the case of Nocton v.Ashburton (supra) as long ago as 1914. That then caused no excitementamongst counsel (so far as is now known) and for my part I am quite unableto understand why Hedley Byrne when properly understood should cause allthe excitement which of course it has done within the profession to-day.
Finally, it must be remembered that counsel is not liable in negligencemerely because he expresses an opinion which ultimately turns out tobe wrong nor merely because he overlooks one of a number of relevantauthorities. Further, in spite of the expression of Lynskey, J., in Pentecostv. London District Auditor [1951] 2 K.B. 759 at 766 that so far ascivil proceedings are concerned gross negligence is not known to theEnglish common law, I remain of opinion that counsel will only be guiltyof crassa negligentia or gross negligence by some really elementary blunder,see Purves v. Landell(supra).
My Lords, for these reasons I would dismiss the appeal.
Lord Pearson
MY LORDS,
For more than a hundred years it has been a settled principle of Englishlaw that the arrangement between barrister and client (which is made throughthe agency of a solicitor, except in the case of a dock brief) for the barristerto conduct litigious business for the client is not a contractual or otherwiselegally binding arrangement. The relationship of barrister and client inrespect of litigious business does not create legal rights or legal obligations.The client does not make a legally binding promise that he will pay thebarrister his fees. The barrister does not make a legally binding promisethat he will act for the client or that when so acting he will exercise duecare and skill. Therefore, the barrister has no right of action against theclient for fees, and the client has no right of action against the barrister forbreach of undertaking or for negligence.
It seems to me that is the broad conclusion which emerges from theauthorities. But there are several aspects to be considered. I should makeit plain at the outset that the only liability under consideration is liability for negligence or breach of contract. No doubt, if a barrister were guiltyof collusion or otherwise dishonest conduct, the client would have a remedy.But no question of that kind arises here.
The inability of a barrister to sue for his fees has been established for avery long time. His fees for advocacy are mere honoraria: Moor v. Row(1629) 1 Chan. Rep. 38; Viner's Abridgment Vol. 6 page 478 ; Blackstone'sCommentaries Vol. 3 page 28. (" It is established with us, that a counsel can" maintain no action for his fees; which are given, not as locatio vel con-" ductio, but as quiddam honorarium ; not as a salary or hire, but as a" mere gratuity, which a counsellor cannot demand without doing wrong" to his reputation.") Turner v.Phillips (1792) Peake 166 ; Morris v. Hunt(1819) 1 Chitty 544; Kennedy v. Broun (1863) 13 C.B.N.S. 677; Mostyn v.Mostyn (1870) 5 Ch. App. 457 ; In re le Brasseur and Oakley [1896] 2 Ch.487 C.A.; Wells v. Wells [1914] P. 157C.A.; Re Sandiford [1935] Ch. 681.There was also in Ireland Robertson v. Macdonogh (1880) 6 L.R. Ir. 433,citing with approval and following the judgment in Kennedy v. Broun.
The immunity of a barrister from legal liability for breach of his under-taking to appear for the client and from liability for negligence in the con-duct of the case has been well established for more than a hundred years.There were some early dicta to the effect that a barrister might be liable,e.g. in Bradish v. Gee (1754) Ambler 229, but there seems to have been nodecision holding a barrister liable. There has been a series of decisionsholding a barrister not liable. Fell v. Brown (1791) Peake 131 ; Perring v.Rebutter (1842) 2 M and Rob. 420; Swinfen v. Lord Chelmsford (1860)5 H. and N. 890; cf. In re Le Brasseur and Oakley [1896] 2 Ch. 487, 494.The same position has been recognised in Scotland and Ireland. Purvesv. Landell (1845) 12 Cl. and Finn. 91, 103 ; Batcheler v. Pattison andMackersy (1876) 3 R. 914, 918; Mulligan v. M'Donagh (1860) The IrishJurist 101.
The immunity is from tortious as well as contractual liability. In thisconnection the view taken by the Court in Perring v. Rebutter (supra) isimportant, because the action was on the case for professional negligencerather than breach of contract. As the report is quite short, I will set itout:
" This was an action on the case against the defendant as a special" pleader. The declaration alleged that the defendant carried on the" business and profession of a special pleader, and had taken out a" certificate as such, and undertook to advise on matters of law, and to" draw and advise on the proper pleas to be drawn to actions, for fees" and reward in that behalf, whereby it became his duty to use due" diligence etc. That a certain action had been brought against the" plaintiff, and the defendant was retained and employed by him to" advise on the proper plea and defence to be made and so negligently" conducted himself, and misadvised the defendant (alleging the steps" advised by the defendant) that the defence failed. The declaration" alleged that the defendant was not nor ever had been a barrister." Pleas, 1st Not guilty, and other pleas traversing the material allega-" tions of the declaration. On the case being called on, Lord Abinger" C.B. said he had read the declaration and did not see how this action" could be maintained. Such an action was certainly not maintainable" against a barrister, and in his opinion there was no distinction between" the case of a barrister and that of a certificated special pleader. Upon" this intimation of his Lordship's opinion, a conference took place" between the counsel, and the case was settled by withdrawing a juror."
Although the essence of the ratio decidendi in Swinfen v. Lord Chelms-ford and Kennedy v. Broun was the absence of a contract between barristerand client in relation to litigation, I think it appears from the course ofthe arguments as well as the judgments that the reasoning should be under-stood as ruling out tortious as well as contractual liability. In Swinfen v. LordChelmsford at page 911, after counsel had cited in argument certain casesrelating to liability for negligence in performing gratuitous services,Branwell, B. said: " The general doctrine is clear; the only question is," whether the case of counsel is an exception ". In fact the action on thecase for professional negligence, independently of contract, is an ancientform of action, recognised but not invented in Hedley Byrne and Co. Ltd.v. Heller and Partners Ltd. [1964] A.C. 465. I do not. accept the argument,though it was congently presented on behalf of the Appellant, that theHedley Byrne case has altered or rediscovered anything in the barristerand client relationship, at any rate so far as litigious business is concerned.
Moreover, if there were any legal rights or obligations created by thisrelationship, they would have to be contractual because the arrangementis contractual in form: the client through his solicitor makes his offer bydelivering the brief, and the barrister accepts it.
I think it is right to say that the barrister's immunity from liability forprofessional negligence in the conduct of litigation is an exception from ageneral rule of professional liability. It is based on public policy. Inorder to show the recognised basis and scope of the exception, I will citesome passages from authoritative judgments.
The judgment of the Court of Exchequer in Swinfen v. Lord Chelmsfordis important for the decision and for the reasoning so far as it goes, butit does not fully elucidate the doctrine, because there was a difference ofopinion in the Court on some points, which were therefore not dealt with.There are, however, two passages of major significance:
page 920—
" We are all of opinion that an advocate at the English bar, accepting" a brief in the usual way, undertakes a duty, but does not enter into" any contract or promise, express or implied. Cases may, indeed," occur,, where on an express promise (if he made one) he would be" liable in assumpsit: but we think a barrister is to be considered, not" as making a contract with his client, but as taking upon himself an" office or duty, in the proper discharge of which not merely the client," but the Court in which the duty is to be performed, and the public" at large, have an interest."
page 921—
" A counsel is not subject to an action for calling or not calling a" particular witness, or for putting or omitting to put a particular" question, or for honestly taking a view of the case which may turn" out to be quite erroneous. If he were so liable, counsel would" perform their duties under the peril of an action by every disappointed" and angry client."
The doctrine was further developed in the judgment of the Court ofCommon Pleas in Kennedy v. Broun. It was shown at pages 732-3 thatthe suggested distinction between express or special contracts and impliedcontracts was unsound. " A special contract differs from an implied contract" only in the mode of proof . . . The incapacity depends on the subject-" matter, not on the mode of proof." I think the most important passagesin the judgment are these:
page 727—
" We consider that a promise by a client to pay money to a counsel" for his advocacy, whether made before, or during, or after the litigation," has no binding effect; and furthermore, that the relation of counsel" and client renders the parties mutually incapable of making any" contract of hiring and service concerning advocacy in litigation. For" authority in support of these propositions, we place reliance on the" fact that in all the records of our law, from the earliest time till" now, there is no trace whatever either that an advocate has ever" maintained a suit against his client for his fees in litigation, or a" client against an advocate for breach of a contract to advocate ; and," as the number of precedents has been immense, the force of this" negative fact is proportion ably great."
page 729—
. . . These are authorities for holding that the counsel cannot contract" for his hire in litigation. The same authorities we rely on to show
40
" that the client cannot contract for the service of counsel in litigation." There is the same absence of any precedent for such an action: and the" reason for the one incapacity is good for both . . . The proposition" is confined to incapacity for contracts concerning advocacy in litigation." This class of contracts is distinguished from other classes on account" of the privileges and responsibility attached to such advocacy: and" on this ground we consider the cases unconnected with such advocacy" to be irrelevant. Thus, the barrister who contracted to serve as" returning officer—Egan v. The Guardians of the Kensington Union" 3 Q.B. 935 ; and the barristers who contracted to serve as arbitrators—" Vivary v. Warne 4 Esp. N.P.C. 46, Hoggins v. Garden 3 Q.B. 466," Marsack v. Webber 6 H. and N. 1,5; and the barristers who contracted" either for an annual sum by way of retainer (39 H. 6, fol. 21, pl. 31)" for an annuity pro consilio impenso et impendendo (Plowd. Com." pages 32, 150)—made contracts not concerning litigation, and therefore" not within the incapacity here in question."
page 736—
" If the authorities were doubtful, and it was necessary to resort to" principle, the same proposition appears to us to be founded on good" reason. ..."
page 739—
" On principle, therefore, as well as on authority, we think that there" is good reason for holding that the relation of counsel and client" in litigation creates the incapacity to make a contract of hiring as an" advocate. It follows that the requests and promises of the defendant," and the services of the plaintiff, created neither an obligation nor" an inception of obligation, nor any inchoate right whatever capable" of being completed and made into a contract by any subsequent" promise."
In a Scottish case, Batchelor v. Pattison and Mackersy (1876) 3 R. 914,the advocate and the agent (a writer to the signet) were sued by the client foralleged mishandling of the case in Court. The Sheriff-substitute found thatthe pursuer's allegations were irrelevant and insufficient to support theconclusions of the action, and he therefore dismissed the action. The Sheriffadhered. On appeal the First Division of the Court of Session upheld thethe decision and refused the appeal. The Lord President in his judgmentdealt both with the position of the advocate and with the position of theagent. As to the advocate he said at page 918:
" An advocate in undertaking the conduct of a cause in this Court" enters into no contract with his client, but takes on himself an office" in the performance of which he owes a duty, not to his client only, but" also to the Court, to the members of his own profession, and to the" public. From this it follows that he is not at liberty to decline, except" in very special circumstances, to act for any litigant who applies for his" advice and aid, and that he is bound in any cause that comes into Court" to take the retainer of the party who first applies to him. It follows," also, that he cannot demand or recover by action any remuneration" for his services, though in practice he receives honoraria in considera-" tion of these services. Another result is, that while the client may get" rid of his counsel whenever he pleases, and employ another, it is by" no means easy for a counsel to get rid of his client. On the other hand," the nature of the advocate's office makes it clear that in the perform-" ance of his duty he must be entirely independent, and act according" to his own discretion and judgment in the conduct of the cause for" his client . . . ."
In the case of In re Le Brasseur and Oakley [1896] 2 Ch. 487 C.A. abarrister was claiming to set off fees payable to him by solicitors for his actingas counsel in proceedings before a Parliamentary Committee against sumsdue from him to the same solicitors. The barrister's claim was rejected byKekewich J. and the Court of Appeal. Lindley LJ. said at page 494:
"... I think it is of the utmost importance that the Court should not" assist barristers to recover their fees. If they do so, the whole relation" between a barrister and his professional client will be altered, and a" door will be opened which will lead to very important consequences as" regards counsel. The inevitable result will be to do away with that" which is the great protection of counsel against an action of negligence
" by his client "
Lopes L.J. said at pages 495-6:
" I entirely agree that the Court cannot and ought not to assist a" barrister in recovering his fees. Their payment is only a matter of" honour. It is open to counsel, if he thinks fit, not to accept a brief" unless the fee is prepaid, and it would be contrary to all the decisions," and I think against good policy, to hold that counsel's fees are recover-" able. The decision of the Court of Common Pleas in Kennedy v." (Broun has always been acted upon, and it establishes the unqualified" doctrine that the relation of counsel and solicitor renders the parties" mutually incapable of making any contract of hiring and service in" regard to litigation. That rule has existed for a long time and, speaking" for myself, I should be very sorry to see it in any way impugned."
Rigby L.J. at page 496 agreed with the order and the reasons for it andespecially with what had been said about counsel's fees.
It has been suggested that the reasoning of the Court of Appeal, especiallyLord Lindley, in the case of In re Le Brasseur and Oakley was defective,in that it was being said that because a barrister could not sue for his feestherefore he must be immune from any liability for negligence. But I thinkthat this criticism is based on a misunderstanding of the reasoning, which wasentirely sound. The reasoning was that the relation between the barrister andthe client (acting through his solicitor) is non-contractual and does not createlegal rights or obligations on either side, so that the barrister can neither suefor his fees nor be sued for negligence ; but if the courts were to decide thatthe barrister could sue for his fees, the decision would mean that there is acontractual relationship, and it would follow that he could be sued fornegligence in the conduct of a case.
These are, I think, the principal passages in the authorities the passageswhich state the doctrine most clearly. I find them convincing. The doctrineis logical and consistent and supported by adequate reasons of public policy,and it has remained unchallenged for more than a hundred years until itwas challenged in the present case.
There remains the question whether the relevant requirements of publicpolicy may have changed in the meantime. I think a negative answer shouldbe given. I have had the advantage of reading in advance the speeches ofmy noble and learned friends and I agree with what they have said on theaspects of public policy involved and I cannot usefully add anything.
There are two further questions. They do not arise for decision in thisappeal, but they are closely connected with the dominant principle which, inmy view, determines the result of this appeal and they were considered inthe judgments of Lawton J. and the Court of Appeal. I will say a few wordsabout them.
Does the barrister's immunity extend to " pure paper work ", that is tosay, drafting and advisory work unconnected with litigation? The authoritiesto which I have referred above do not show it. Indeed, the judgment inKennedy v. Broun emphatically and repeatedly confined the proposition—the barrister's and client's mutual incapacity to contract—to matters of liti-gation. There is a case Mostyn v. Mostyn [1870] 5 Ch. App. 547 where itwas held that a barrister was not entitled to claim for fees for work doneby him as conveyancing counsel in giving advice and settling conveyances.It would follow, according to the doctrine as I understand it, that he couldnot have been sued for negligence in doing such work. But Giffard L.J.in giving judgment did not draw that conclusion, and did not go deeplyinto the question involved. While expressing warm approval of the judg-ment in Kennedy v. Broun, he made no mention of its emphatic and repeated limitation of the proposition to matters of litigation. It seems to me thatMostyn v. Mostyn is not a convincing authority, at any rate on the questionof immunity, and it is at least doubtful whether barristers have any immunityfrom liability for negligence in doing " pure paper work " in the sense whichI have indicated.
Does a solicitor advocate have the same immunity as a barrister advocatefrom liability for negligence? Logically it seems right that he should, becausethe same reasons of public policy seem equally applicable to both of them.There are, however, some difficulties. The principle of a barrister's in-capacity to contract is not readily (if at all) applicable to a solicitor. Theexisting position, as usually understood, is that the solicitor by acceptinginstructions makes with his client a contract, under which the solicitor hasa legal right to remuneration and legal obligations to carry out the instruc-tions and to exercise due care and skill in doing so. I am not aware of anydecision or even dictum in a judgment to the effect that there is an exceptionrelating to the solicitor's work as an advocate—that in respect of such workthere is no legal right or legal obligation. If public policy requires that asolicitor must have immunity from legal liability in respect of his advocacywork, what is to be the contractual position? The solicitor may acceptcomposite instructions, both to do the ordinary work of a solicitor (forinstance, to interview witnesses and take their proofs and arrange for theirattendance at the trial) and to conduct the case in Court as an advocate.In such a case how much of the arrangement between the solicitor andthe client is contractual and how much is non-contractual? That is not aneasy question to answer. There are problems involved. They are not neces-sarily insoluble. But I think they would be more appropriately consideredat length in a case where the question of a solicitor's liability for advocacy work was raised for decision.